Mr A Mcgurk v Dirty Dogs Deli Ltd: 8000657/2024
JUDGMENT
[1]The complaint of unlawful deduction from wages is dismissed upon withdrawal.[2]The complaint of failure to pay holiday pay is dismissed upon withdrawal.[3]The respondent was in breach of contract and is ordered to pay to the claimant damages in sum of £1,1157.40.[4]The Claimant was not provided with itemised pay statements but it would not be just and equitable to make a monetary award.REASONS
[5]A final hearing had been listed for today by CVP (video) to determine complaints of unlawful deduction from wages, holiday pay and failure to provide itemised pay statements.[6]The Claimant appeared on his own behalf. Craig Campbell, Director appeared on behalf of the Respondent. The relevant facts were not in dispute and accordingly oral testimony was not given.[7]Following discussion it was agreed that there was no failure to pay holiday pay and that complaint was withdrawn and falls to be dismissed.[8]It was not in dispute between the parties that: -a. The claimant was employed by the respondent as a chef from 5 January to 15 June 2024.b. The respondent had deducted tax and NI from the claimant’s gross pay and paid to him the net balancec. The amount of the tax and NI deducted was correct (an earlier error was addressed by a balancing payment)d. The amount deducted has not been remitted to HMRC by the respondent because of an administrative error on the part of HMRC. The respondent has made reasonable endeavours to address that error without successe. The claimant has not been provided with a written pay statement because the software will not generate a payslip until the issue with HMRC is resolved. The claimant has been provided with regular verbal explanations for this issue but nothing in writing.f. The amount of the deductions for tax and NI was as follows: Hours Date Gross Net Deduction worked 18/0/2024 420 361.2 58.8 35 22/03/2024 450 357.84 92.16 37.5 02/04/2024 420 361.2 58.8 35 05/04/2024 456 387 69 38 12/04/2024 420 361.2 58.8 35 19/04/2024 420 361.2 58.8 35 26/04/2024 168 168 0 14 03/05/2024 420 361.2 58.8 35 13/05/2024 420 361.2 58.8 35 17/05/2024 72.24 -72.24 17/05/2024 504 361.2 142.8 42 24/05/2024 336 216.72 119.28 28 24/05/2024 72.24 -72.24 31/05/2024 420 370.35 49.65 35 07/06/2024 558 454.28 103.72 49 14/06/2024 420 370.35 49.65 35 21/06/2024 504 430.83 73.17 42 01/07/2024 420 170.35 249.65 35 Total 6756 5598.6 1157.4 565.5[9]Following discussion it was agreed that there was not an unlawful deduction from wages because the tax and NI was an authorised deduction. The issue was that the deduction had not been remitted to HMRC in breach of a duty to do so. The claimant made an application to amend to include a complaint of breach of contract in respect of the failure to remit those funds to HMRC which was not opposed by the Respondent. Discussion and decision Breach of contract[10]The respondent was under an implied contractual duty to remit the deductions of tax and NI to HMRC and the failure to do so amounted a breach of contract arising or outstanding on termination. The claimant is entitled to damages in sum of £1,1157.40 representing the total amount of the deduction of tax and NI from wages. The claimant is responsible for remitting to HMRC directly the tax and NI relating to his employment with the respondent. Itemised pay statement[11]The claimant was entitled to but did not receive an itemised pay statement. Unnotified deductions were made but it is not considered just and equitable to make a monetary award because the claimant has been awarded the amount of the deductions by way of damages for breach of contract.