Mr K Tran v Treat Yard Ltd (formerly known as THC South West Ltd): 6020138/2024 and 6021409/2024
JUDGMENT
[1]The respondent was notified of this claim and listing of a final hearing by way of a letter dated 5 December 2024 addressed to its registered office. It filed a response within time. It failed to attend or be represented at the final hearing. In accordance with Rule 47 of the Employment Tribunal Procedure Rules 2024 the hearing proceeded in the absence of the respondent. Reasonably practicable time limit met[2]The relevant time limit is set out in section 23 of the Employment Rights Act 1996.[3]The date of payment of the wages from which the last deduction in a series of deductions was made was 31 August 2024. The applicable time limit expired on 27 December 2024. The claim was filed on 28 November 2024. The complaint was presented within the applicable time limit.[4]Therefore the Tribunal has jurisdiction to consider the complaint. Case Numbers: 6020138/2024 and 6021409/2024 2 Wages[5]The complaint of unauthorised deductions from wages brought under section 23 of the Employment Rights Act 1996 is well-founded. The respondent made an unauthorised deduction of £5,826.40 from the claimant's net wages in the period 1 April 2024 to 31 August 2024 inclusive. The respondent has repaid the sum of £4,819.56 leaving a sum owing of £1006.84.[6]Pursuant to section 24(2) of the Employment Rights Act 1996 the respondent shall also pay the claimant the sum of £300 to compensate the claimant for financial losses attributable to the unauthorised deduction.[7]The respondent shall therefore pay the claimant the sum of £1306.84. Holiday pay[8]The complaint in respect of holiday pay brought under regulation 30 of the Working Time Regulations 1998 for the period of 20 May 2023 to 14 June 2024 inclusive is well-founded. The respondent made an unauthorised deduction of £349.60 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.[9]The respondent has repaid this sum in full and no payment is ordered. Pay in lieu of notice[10]The claimant’s complaint for breach of contract in respect of notice pay brought under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 is well-founded. The claimant was entitled to 1 week’s notice but was dismissed without lawful notice.[11]The respondent shall pay the claimant the sum of £468.00. The claimant is responsible for the payment of any tax or National Insurance. Missing pension contributions[12]The complaint of breach of contract due to missing pension contributions between May 2024 (£30.47) and June 2024 (£64.56), brought under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, is well-founded. The respondent shall pay the claimant the sum of £95.03.[13]I record that the respondent stated in its ET3 response dated 20 December 2024 that it has an arrangement with The Pensions Regulator to repay the missing sums. The claimant must provide a copy of this judgment to The Pensions Regulator in the event of any enquiry made of him or any other correspondence relating to these missing contributions. Case Numbers: 6020138/2024 and 6021409/2024 3 Summary[14]The respondent is ordered to pay the sum of £1,869.87 calculated as follows (wages subject to tax and national insurance): Wages not paid April 2024 £1969.96 Wages not paid May 2024 £1367.71 Wages not paid June 2024 £2139.13 Wages not paid August 2024 £349.60 Less repayments made by respondent (£4819.56) Compensation for financial loss £300 Total wages owed + compensation £1306.84 Holidays not taken £349.60 Less repayment made by respondent (£349.60) Pay in lieu of notice £468.00 Missing pension contributions £95.03 Judgment sum due £1,869.87 Approved by:REASONS
[1]These written reasons are produced following a request from the claimant pursuant to rule 60(4) of the Employment Tribunal Procedure Rules 2024.[2]By way of claim form dated 28 November 2024 the claimant, Mr Tran, brought a claim for unauthorised deduction of wages, holiday pay, pay in lieu of notice, and missing pension contributions against the respondent, Treat Yard Limited.[3]The respondent was notified of this claim and listing of a final hearing by way of a letter dated 5 December 2024 addressed to its registered office. It filed a response within time, which stated: Case Numbers: 6020138/2024 & 6021409/2024 2 “kae is claiming for missing wages that are due otherwise be paid in January 2025. This is because the business is no longer trading. He is also claiming for pension contributions but we have an agreement with the pension regulator to repay the scheme over the coming year. We cannot remove his details for the scheme, so he would get paid it twice. … We have an agreement with Smart Pensions and the pension regulator to repay the scheme over the coming year. We cannot remove his details for the scheme as it has been processed and uploaded to his personal pension, so he would get paid it twice over here.”[4]The respondent failed to attend or be represented at the final hearing on 20 March 2025. In accordance with Rule 47 of the Employment Tribunal Procedure Rules 2024 the hearing proceeded in the absence of the respondent.[5]The sole issue in the case was whether the claim was commenced in time.[6]I heard evidence from the Claimant on affirmation. I accept his evidence and his explanation for the apparent delays in filing his claim.[7]The relevant time limit is set out in section 23 of the Employment Rights Act 1996. It requires that proceedings are commenced within three months of the acts complained of. This period may be extended for such time as the Tribunal considers reasonable in a case where it is satisfied in that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[8]At the start of the proceedings I raised the issue with the claimant as it seemed to me that time may have begun from the deduction from wages due on 30 June 2024 because the claimant's last day in employment was 14 June 2024. In his ET1 and in evidence the claimant stated that he was owed arrears of pay and holiday pay which the company agreed to pay him in instalments, the final instalment being paid via payslip dated 31 August 2024. The claimant told me in evidence that he was aware that there was a time limit for filing a claim with the ET. He thought this date was calculated from 31 August 2024 which was his final payslip.[9]I find that the respondent by its conduct agreed that the date of the final payment due to Mr Tran was 31 August 2024. That is what the payslips it issued stated. The final act in the series of deductions was the date of payment of these arrears, 31 August 2024. The applicable time limit was therefore 27 December 2024. The claim in case 6020138/2024 was filed on 28 November 2024 and was in time. The claim in case 6021409/2024 it is identical to the first claim form in the substantive claim. In fact the second claim is not needed. Case Numbers: 6020138/2024 & 6021409/2024 3[10]I therefore proceeded to hear the substance of the case.[11]I heard evidence from the claimant followed by submissions. I was shown messages and bank screenshots indicating that the respondent had been paying parts of the money owed at intervals since June 2024, and had been assuring the claimant that they would pay the remainder soon. The claimant gave evidence that this had been happening against a background of scheduled major surgery he was undergoing on 17 June 2024. That surgery led to serious complications and placed him back in hospital. He was heavily medicated with painkillers and was in fear for his health. He was signed off from work for 3 months. He suffered financial difficulties as a result of the non-payment of wages.[12]The respondent was absent and had not filed any evidence. The respondent’s ET3 indicated that it accepted wages were still owed. I accepted the claimant’s evidence that the respondent owed him wages, holiday pay, pay in lieu of notice, and missing pension contributions. The holiday pay had since been repaid.[13]I record that the respondent stated in its ET3 response dated 20 December 2024 that it has an arrangement with The Pensions Regulator to repay the missing sums. The claimant must provide a copy of this judgment to The Pensions Regulator in the event of any enquiry made of him or any other correspondence relating to these missing contributions. Approved by