K King v All Seasons Philipburn Ltd: 8001537/2024
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s claim fails, and is dismissed.REASONS
[1]The claimant presented a claim to the Employment Tribunal on 25 September 2024, in which he complained that he had been unlawfully deprived of pay.[2]The respondent submitted an ET3 response in which they denied the claimant’s claims.[3]A Hearing was listed to take place on 18 December 2024 by CVP for 2 hours. It did not prove possible to conclude the Hearing on that date, and accordingly, the Hearing continued on 17 January 2025. ETZ4(WR)[4]The claimant represented himself, and Ms Cho appeared for the respondent.[5]A Bundle of Productions was presented by the respondent to the Tribunal and relied upon by both parties in the course of the Hearing.[6]The claimant gave evidence on his own behalf, and the respondent’s two directors also gave evidence, Adrian John Leopard and Graham Hobson.[7]The respondent’s representative attended at the Hearing with witness statements for her two witnesses. I informed her that no Order had been made to this effect by the Tribunal, and that witness statements are not routinely used in Tribunal litigation in Scotland. However, the claimant confirmed that he had no objection to the witness statements being relied upon by the respondent as the evidence in chief of their two witnesses. Accordingly, I allowed the witness statements to be received and to stand as the evidence in chief of the two witnesses for the respondent.[8]The respondent also sought to produce a statement by Rebecca Sharpe (35); however, Ms Sharpe was not in attendance and did not present herself to give evidence, and accordingly I refused to admit this statement as a document in evidence before the Tribunal. In my judgment, it would be grossly unfair to the claimant to permit into evidence a statement purporting to lay out a number of facts, including strong criticisms and allegations about the claimant, without his having the opportunity to challenge that evidence by questioning the witness. The statement had no evidential value and I refused to allow the respondent to refer to it.[9]Based on the evidence led and information provided, the Tribunal was able to find the following facts admitted or proved. Only facts which are relevant to the issues in this case are set out here. The Tribunal heard a considerable amount of evidence which did not have any direct impact upon the case made by the claimant, and does not consider it appropriate or necessary to record all of the evidence led. Findings in Fact[10]The claimant, whose date of birth is 21 March 1996, commenced employment with the respondent as a team leader on 26 July 2024.[11]The claimant was provided with a contract of employment (84ff). He was employed as Team Leader, based at the Philipburn House Hotel.[12]The claimant’s hours were defined by clause 5 of the contract. It was stated in5.1 that the respondent was under no obligation to provide the claimant with any work nor a minimum number of hours per day, and therefore that the contract was regarded as a “zero hours contract”. It was said to be a term of his contract that he agreed to be available for work, should the respondent offer him work.5.2 also confirmed that he may be required to work additional hours in excess of normal hours of work as are reasonably necessary for the proper performance of his duties and to meet the needs of the respondent’s business.[13]Clause 6 defined his salary and benefits. He was only entitled to be paid for the hours he worked, at the rate of £12.60 per hour, payable in arrears in monthly instalments, made up to the last working day of each month and payable on or before the 10th day of the following month.[14]Under clause 8, the claimant was entitled to 28 working days’ holiday per annum, pro rata in accordance with hours worked, in each holiday year. The contract said that holiday pay would be calculated and paid monthly as a percentage of the earnings for that month, though the precise percentage was not identified in the contract.[15]The claimant maintained that he had worked an average of 35 or 36 hours per week after the first week he worked for the respondent.[16]The hours of each employee including the claimant were recorded by way of a clocking in system.[17]The respondent disputes the accuracy of the times recorded on this system and also disputes that the claimant required to work until beyond approximately 9.30pm on any given night.[18]The respondent’s business is a hotel which is not open for booking to the general public, but is used by commercial companies to place employees who require to be away from home in the Selkirk area overnight. Services in the hotel are limited on the basis that the residents work during the day, and then tend to eat in the hotel, sometimes in the restaurant and sometimes in their rooms. Some residents, and occasional groups who are passing, will frequent the bar.[19]The claimant worked between the kitchen, the bar and the restaurant.[20]The respondent produced (23) a “Notice of operation of flexible shift system”, of which the claimant was aware.[21]Paragraph 4 of the policy provided: “Daily shifts: The Company’s normal hours of operation include four daily shifts, early, lunch, afternoon and late. The time of shifts is ‘flexible’ because opening and closing times will be set by arrival and departure of customers in the dining room. Shift times are as follows: Early shift Shift 1 0700 hours to 1100 hours Lunch shift Shift 2 1100 hours to 1500 hours Afternoon shift Shift 3 1500 hours to 1730 hours Late shift Shift 4 1730 hours to 2130 hours”[22]The policy went on to provide, at paragraph 6: “Late shift will finish as quickly as possible after the last diner/drinker leaves the restaurant/bar and when cashing up and preparations for breakfast are complete. If this is before 2130 hours then the shift will be shortened; if later, then lengthened.”[23]Finally, paragraph 16 provided that all staff were required to sign in and out of the premises using the computerised time recording system, which was intended to show who is in the building at any given time and was not intended to be a “fixed calculator” for staff pay. It continued: “In general staff will be paid for the quarter hour blocks for which they are signed in but the Company reserves the right to scrutinise all hours claimed and to make adjustments where it is considered that time has been spent unreasonably or unnecessarily. Staff working after their shift closing time will need to clear this with the supervisor on duty who will record such arrangements in writing for the diary. Time not cleared may not be paid for…”[24]A spreadsheet was prepared by the respondent and produced to the Tribunal (123).[25]On 1 August 2024, it is noted that he clocked in at 06.58, and clocked out at 09.12. At 1729 on that date (153), the claimant emailed to apologise for not having been in for the afternoon shift. He had explained that he had had a family funeral to attend.[26]Following the claim being lodged, the respondent accepted that the claimant had in fact worked for the hours which were recorded against his name, and paid him £159 to cover this. The claimant accepted that this was the correct amount.[27]On 3 August 2024, the claimant clocked in at 15.52 and clocked out at 01.20, a total shift of 9 hours 28 minutes. After the claimant presented his claim – indeed, just before this Hearing commenced – the respondent accepted that the claimant had worked this shift and that he was entitled to be paid for it.[28]On 6 August 2024, the claimant clocked in at 07.05 and out at 15.02. He was paid for 4 hours. Again, the parties were agreed that the respondent paid the claimant the balance of that shift on the morning of the Hearing.[29]On 7 August 2024, the claimant clocked in at 07.46 and out at 11.19; and clocked in again at 14.56, and out at 22.28, a total for the day of 11 hours 5 minutes. He was paid for 8 hours on that day.[30]It was noted on the spreadsheet that Rebecca Sharpe, with whom the claimant was very friendly (he accepted in evidence that they were “close”), had admitted to signing the claimant in in the morning; and that shift 3 started at 15.00. There was “nothing exceptional” about the shift, and the last diners were booked to eat at 20.00.[31]It should be observed at this point that Ms Sharpe did not give evidence to this Tribunal, and therefore I can make no finding to the effect that she clocked in for the claimant on 7 August. This assertion was not put to the claimant in cross-examination either, and accordingly it rests rather unsatisfactorily there.[32]The respondent’s position was simply that the claimant did not work the hours in the morning, and that he did not require to stay as late as 22.28 in the evening given that the final guests were seated at 20.00 in the restaurant. The respondent maintained that he was not entitled to be paid past 21.30 that night, and that he was only due pay for the shift which he was on.[33]The claimant’s position was simply that he did require to stay beyond 21.30 in order to attend to guests who were still requiring to be served. He was unable to comment on the specifics of what happened on particular shifts. He did maintain that the staff received complaints from guests about the length of time it took the kitchen to produce meals to them.[34]On 8 August, the claimant clocked in at 14.59 and out at 00.10, a total of 9 hours and 10 minutes. He was paid for 4 hours on the basis that Ms Sharpe was on shift 4, and that the last diner was seated at 20.00. The respondent’s position was that he should have signed out at 21.00 as there was no need to work beyond that time. The claimant maintained that the last diner probably left about 10 or 11pm, and that it would have taken about an hour to do all the final tasks like cashing up and preparing for breakfast. He denied that he had stayed on that occasion simply to spend time with Ms Sharpe.[35]On 9 August, the claimant clocked in at 17.35 and out at 23.08, a total of 5 hours 33 minutes. He was paid for 4 hours on the basis that he was on shift 4, and that the last diner was at 19.45 and so his shift should have ended at about 20.45. He thought he probably stayed past the end of his shift with Martin, one of his colleagues, dealing with guests. He denied that he stayed on to drink.[36]On 10 August, the claimant clocked in at 17.31 and out at 23.20, a total of 5 hours and 49 minutes. He was paid for 4 hours on the basis that the last diner was seated at 20.30 and therefore that the claimant did not require to be on shift beyond 21.30. There was a table of 17 diners in the restaurant that evening and he maintained that it took a very long time to serve all of them. He also maintained that he had a flexible contract and that to leave at 21.30 would lose the hotel money.[37]On 11 August, the claimant clocked in at 06.40 and out at 10.49, and again at 16.47 and out at 19.28. He was paid 4 hours for that day. Ms Sharpe and Martin were on shift 4 that day, and the claimant conceded that he was probably sent home as he was not needed to work that evening. He denied that he simply came in to obtain more hours to increase his pay. He maintained that if he were there for 2 hours or so there was “probably a good reason”.[38]On 12 August, the claimant clocked in at 08.17 and out at 22.26, a period of 14 hours and 9 minutes. The respondent’s position was that he was rostered to work shift 1 and shift 4 that day, but that would have required him to arrive at 07.00, when he arrived more than an hour later, and that on shift 4 his two colleagues were on and accordingly there was no need for him to attend. On the spreadsheet, it is noted that this was “believed to be fake”. The claimant denied this. He could not remember if Martin had called in sick, but observed that if Mr Leopard had seen him there when he was not supposed to be, he would have questioned him about it. He denied that these were false entries.[39]On 15 August, the claimant accepted that despite being rostered for shifts 1 and 4, he did not turn up for shift 1. He clocked on at 18.20 (an hour late) and out at 23.23, a total of 5 hours and 23 minutes. He was paid 3 hours for this. He maintained that 7 people were in the bar late drinking and therefore he required to remain in attendance to serve them. Both he and Ms Sharpe were rostered for shift 4. He denied that he stayed late in order to have drinks with Ms Sharpe.[40]He was not paid for shift 1.[41]On 16 August, the claimant was rostered on shift 4, but clocked on at 13.55, clocking out at 22.39. he said that he believed that the reason he came in early that day was to carry out some marketing duties, as he was required to do from time to time. The hotel did not serve lunch.[42]The last diners were seated at 18.30. He said that it was most likely the case that diners stayed for a very long time, which was why he did not clock out until 22.39. He and Ms Sharpe were on shift together, but he denied that he stayed late in order to drink with her.[43]On 17 August, the claimant clocked in at 11.29, and out at 22.40, a total of 11 hours and 11 minutes. He was paid for 4 hours. He was rostered to be on shift 4. The last diner was seated at 19.30. The respondent took the view that he should have left by 20.30. The claimant’s position was that 21.30 is not a reliable time by which to “have people chucked out”. However, it is not clear why he clocked on at 11.29, and why he remained in the hotel until the start of his rostered shift, and he gave no explanation.[44]On 18 August, the claimant clocked in at 07.25 and off at 07.12 the following morning. He was paid for 4 hours. He was rostered for shift 1 and shift 4. On that date, at approximately 2pm, Mr Leopard and Mr Hobson decided to come to the bar for a drink. They encountered the claimant, Ms Sharpe and the chef, Mr Tariq, emerging with empty glasses. They observed the claimant drinking more alcohol, becoming progressively drunk. By 5pm, the claimant was unable to start his shift, and accordingly went home. He did not clock out at the end of his first shift, nor did he clock out when leaving in the afternoon. His position was that he had no recollection of being sent home drunk. He said that he simply forgot to sign out.[45]On 19 August, the claimant clocked in at 17.32 and off at 22.58. There were 5 guests, the last of whom was seated at 18.30. The respondent considered that he should have finished his shift by 19.30. The claimant’s position was that he only stayed because he needed to do so, and therefore that he must have been serving guests.[46]On 20 August, the claimant clocked in at 11.54 and out at 17.19. He was rostered for shift 4. The respondent believed this to be “fake”; the claimant’s position was that he was probably in the hotel carrying out marketing duties, and was “evidently” sent home when Ms Sharpe and Martin attended for shift 4.[47]On 21 and 22 August, the claimant was not rostered to work, and did not attend.[48]On 23 August, the claimant clocked in at 09.24 and off at 13.14, a total of 3 hours and 50 minutes. He was due to start at 7am, but did not attend at that time. Mr Leopard emailed him at 08.22 to complain that he had not turned up for his shift at 7am, and said “This obviously cannot go on...”[49]The claimant returned and clocked in at 17.28, and off at 01.03 the following morning. He was paid for 4 hours and 30 minutes. The respondent believes that he should have left at 20.00, the last diners having been seated at 19.00. The claimant’s position was that there was a large party of 22 people and that they stayed late in the bar, eventually having to be asked to leave. He denied that he had stayed on to drink after he had finished working, not clocking out until he left the building.[50]On 24 August, the claimant clocked in at 10.51 and off at 23.43, a period of 12 hours and 52 minutes. The claimant was paid for 12 hours and 15 minutes. There was a wedding in the hotel on that date, and accordingly the claimant had to work for longer than usual.[51]On 25 August, the claimant clocked in at 07.49 and off at 11.49, a period of 4 hours, for which he was paid, albeit that he was not rostered to work that day. The claimant accepted that he was paid in respect of this date, by the respondent’s payment just before the commencement of the Hearing.[52]The claimant’s employment was terminated by the respondent with effect from 25 August 2024 after the respondent found that he had stolen money from the bar area. The claimant admitted his wrongdoing and sought to repay the money taken.[53]On 28 August 2024 (196), the claimant emailed the respondent to ask if they would be prepared to pay his wages early, as he had found him in very straitened circumstances following his dismissal, partly due to the displeasure he had caused his family who had withdrawn support from him.[54]The respondent, in the form of Mr Leopard, replied on 30 August 2024 (195): “Kieron, I do not believe you appreciate the ramifications and consequences of what you have done. Firstly you are not to come to our premises; any deemed consent is specifically withdrawn and the police have confirmed that if you do they will come and arrest you. As regards your request for early payment of wages, we do not do that in any circumstances. However you appear to have overlooked the consequences of what you have done. You have created a situation where we are now suffering damage as a direct result of your actions which culminated in your immediate dismissal. A large part of the work you carried out during August was in relation to marketing and which I suspect is now valueless to us because we cannot use it for various reasons. This creates a claim in damages against you. You knowingly took action which you must have known would result in your dismissal if discovered with consequent results. We have even more issues now having looked at the CCTV further. You were helping yourself to free drinks which you did not pay for; you served Rebecca vodkas, again not paid for. You were vaping on both sides of the bar, a strictly illegal action; you refused to sign out when Rebecca told you because you said you could get extra paid hours by not doing so. You threatened to burn the hotel down. Really you have become a serious liability and I question whether in fact there is any justification to pay you anything. A criminal cannot benefit from his criminal actions and I have to explore the possibility of these actions going deeper. I will be considering matters generally. Just so you are aware, the matter has been reported to the police and I understand that they are now going to come and see you. Adrian”[55]During and following his employment, the claimant received two payslips (102-3).[56]On 5 August 2024, it was recorded that the claimant had worked 30 hours in the relevant pay period. He was paid basic pay of £378, and other payments of £40.03, coming to a total of £418.03. from that was deducted income tax of £91.22, leaving him with net pay of £509.25.[57]On 5 September 2024, the claimant was recorded as having worked 67.75 in the pay period. He was paid basic pay of $835.65, and other payments of £90.41, coming to a total of £944.06. No deductions were made, and the claimant’s net pay for that period was £944.06.[58]It is noted that on that payslip, his gross pay for the year to date was record as £2,795.36. Submissions[59]Both parties made short oral submissions which were taken into account by the Tribunal.The Relevant Law
[60]Section 13 of the Employment Rights Act 1996 provides: (1) “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… (3) Where 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 the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of his Part as a deduction made by the employer from the worker’s wages on that occasion.” Discussion and Decision[61]The simple issue in this case, in my judgment, is whether the claimant has suffered unlawful deductions from his wages, on the basis that he has not been paid the sums properly payable to him throughout his short employment with the respondent.[62]The claimant’s contract of employment entitled him to be paid for the hours which he worked (clause 6)(85/6).[63]The claimant’s contract went on, at paragraph 16, to confirm that there were no collective agreements which directly affected the terms of his employment (88). Reference was made, in clauses 17 and 18, to disciplinary and grievance procedures, although nothing arises in these proceedings from either policy.[64]The respondent also produced a “Notice of operation of flexible shift system” (29). No evidence was presented to me to the effect that this is a contractual document, though the claimant confirmed that he had seen it and was aware of its terms. It is not incorporated into the contract by express term of the contract or by any written agreement. However, the claimant did not dispute that it applied to him and other employees.[65]It is notable, in my view, that this policy states that the average closing time in the evening is 21.30, but this is variable based on customer demand (clause 11); late shift would finish as quickly as possible after the last diner/drinker left the restaurant/bar and when cashing up and preparations for breakfast were complete; and if this were before 21.30, the shift would be shortened, but if later, then lengthened (clause 6); and that the time recording system was intended to show who was in the building and was not intended to be a fixed calculator for staff pay, but that the respondent reserved the right to scrutinise hours actually worked against activity, and that staff working after the shift closing time would require to clear extra time with their supervisor (clause 16).[66]The primary issue, therefore, is to determine when the claimant was working, and to work out whether or not he has been paid for the work he actually did. He claims £832.33 in respect of 78.75 hours, taking into account the sums already paid.[67]The claimant relies upon the hours recorded on the clocking system as being accurate, or largely accurate, as a record of the hours he worked and for which he was therefore due to be paid. This is disputed by the respondent, partly because they maintain that the clocking system was not for the purposes of recording hours for pay, but also partly because they do not accept the accuracy of the claimant’s clocking records.[68]The respondent’s position is made more complex by the fact that between the lodging of the claim and the start of the Hearing, they carried out further investigations and determined that in fact the claimant was entitled to pay for periods for which he was claiming but which they disputed.[69]I remind myself that it is for the claimant to prove his loss – he bears the burden of proof to show that he was, on the balance of probabilities, not paid for work which he did.[70]In seeking to reach my conclusions, I had regard to the claimant’s evidence, and to the manner in which it was given, as well as the surrounding circumstances. My assessment is that the claimant’s evidence cannot wholly be relied upon, for the following reasons: He was dismissed for gross misconduct, namely dishonesty, in that he stole money from the respondent. This demonstrates that he has the capacity to act dishonestly. His responses to questions were vague and unsatisfactory; when asked to explain why he had clocked out after midnight on a number of occasions, he was unable to recall precisely why this was on any given day, but sought to give general explanations to the effect that they must have been busy, despite accepting that on a number of occasions the last diner was seated early in the evening. The lack of a clear explanation for his late departure was unhelpful and unconvincing. On 11 August, the claimant clocked in and out for approximately 2 hour when he was not required to attend at all. It is not clear why he clocked in, and raises a concern that he was seeking to “pad out” his hours in order to receive more pay. On 18 August, the claimant’s clockings demonstrate that he was, on the face of it, on duty for almost 24 hours. He said that this was a mistake, but it is clear that he took no steps to explain or correct his mistake until he gave evidence before the Tribunal. It is simply not credible that the claimant would have been on duty for such a long time, and in my judgment, the respondent were justified in their suspicions that he was seeking to boost his earnings by his clockings.[71]There is, further, a lack of precision in the claims made by the claimant. It is entirely unclear to me how he calculates what he claims to be the outstanding sum he claims to be due to him.[72]In my judgment, there is such a lack of clarity, and credibility, surrounding the claimant’s evidence that it is not possible to conclude that he was entitled to all the pay he claims he was, and that the respondent were justified in their suspicions that he was seeking to increase his pay by clocking in and out for longer shifts than he was actually working. The respondent’s policy makes clear that staff are required to leave as quickly as possible at the end of their shift, once the work is done. The claimant clearly never left early, even when he accepted that the hotel was very quiet. He frequently left very late, several hours after he might be expected to have finished up.[73]One might be critical of the respondent for not having carried out the detailed investigation into the claimant’s clockings at the time rather than after his employment ended, and the impression lingers that there is no clear line of supervision of staff like the claimant to be ensure that when their work was done, they should clock out and go home.[74]However, it is my conclusion that the claimant has not provided clear and believable evidence to demonstrate, on the balance of probabilities, that he has suffered any financial losses as a result of being deprived of wages which were properly payable by the respondent.[75]The claimant’s claim therefore fails, and is dismissed. 28/02/2025