Miss Halide Mustafa v ScotNursing Ltd: S/4102002/17
JUDGMENT
[1]The claimant does not have the necessary qualifying service to claim unfair dismissal, and therefore the claim for unfair dismissal is dismissed.[2]The claimant's application to add a wages claim is accepted and will proceed as a claim under Section 13 of the Employment Rights Act 1996.REASONS
[1]The claimant was unrepresented. The respondent was represented by Katherine Irvine. The claimant and Ms Irvine each produced a folder of documents. The claimant and Ms Irvine put forward representations and submissions to the Tribunal. No evidence was led.The issues
[2]The issues to be determined by the Tribunal are:(i) whether the claimant had sufficient service to claim unfair dismissal, and(ii) whether an application to include a wages claim (as well as breach of contract) should be accepted. The claimant's length of service[3]The claimant and Ms Irvine agreed the following:-(i) The claimant commenced employment with the respondent on 20 June 2016.(ii) The claimant's employment with the respondent terminated on 6 June 2017 (with the claimant being paid to 13 June 2017).(iii) The claimant had previously been employed by the respondent from October 2014 to March 2015. Having moved to Australia temporarily and then worked at a different company before rejoining the respondent on 6 June 2017, the claimant's continuous employment with the respondent was broken.(iv) Therefore, the claimant's most recent period of continuous employment with the respondent was from 20 June 2016 until 6 June 2017.[4]Under Section 108 of the Employment Rights Act 1996, to claim unfair dismissal under Section 94 of the 1996 Act an employee must have been continuously employed for a period of not less than two years ending with the effective date of termination. Although there are exceptions to this rule, no information was presented to the Tribunal to suggest that any of the exceptions are applicable in this case.[5]The claimant confirmed that her employment commenced on 20 June 2016 and terminated on 6 June 2017. The claimant was not continuously employed for a period of two years. As such, the claimant does not meet the requirements of Section 108 referred to above. This means that the Tribunal does not have jurisdiction to hear the claim of unfair dismissal.[6]The Tribunal acknowledges the sentiment put forward by the claimant that she feels she has been treated unfairly. However, the Tribunal is bound to apply the requirements of Section 108. Therefore, as the claimant was employed by the respondent for less than two years, the claim for unfair dismissal cannot proceed and is dismissed. The wages claim[7]For the respondent, Ms Irvine put forward a submission of which the following is a summary:-(i) In the claim form, the claimant ticked "other payments", and not "arrears of pay".(ii) The claimant has made a reference to some form of breach of contract in relation to on-call payments, but without specifying the basis for any alleged breach.(iii) The first mention of a claim relating to wages was in an email to the Tribunal on 26 October 2017. However, it is not clear which wages are being referred to.(iv) If the wages relate to on-call payments, the last date on which any such payments may have been due was the end of February 2017. Therefore, any such wages claim has been submitted out of time as it should have been submitted by the end of May 2017 after a period of early conciliation. The claimant has not given any reasons as to why it was not reasonably practicable to bring such a claim earlier.(v) The nature of the amendment is a new factual allegation which changes the basis of the claim. Reference was made to the case of Selkent Bus Co Ltd v Moore. Even though the claimant had knowledge of the facts, no reason has been provided as to why the claim was introduced late.(vi) The claimant would not be prejudiced if the wages claim is not accepted, as she already has a claim for breach of contract.(vii) The application to accept a wages claim should therefore be refused.[8]The following is a summary of the points put forward by the claimant:-(i) The claimant did not fully understand the claim form and she made as much sense as she could of Section 8.2. She ticked the box "other payments" as she wished to claim for on-call payments, and then proceeded to refer to on-call on a number of occasions in the claim form. The claimant thought she made it clear her claim was for on-call payments.(ii) It was through discussions with ACAS that the claimant was informed the Tribunal had only noted her claim as unfair dismissal and breach of contract. The claimant then contacted the Tribunal to clarify that her claim was also for wages.(iii) The claimant disputed that the last date for payment of on-call was February 2017. On-call payments were due through to 12 May 2017.(iv) The claimant worked more hours in the office than the hours for which she was contracted. However, she is not claiming any pay for such hours. Her claim is only in respect of on-call payments (and unfair dismissal). When she referred to "wages" in her email to the Tribunal of 26 October 2017, she was referring to on-call payments.(v) The claim is in respect of hours worked outwith the office, usually 11 hours at a time.[9]The Tribunal places significance on the fact that the claimant confirmed her claim is solely in relation to on-call payments. References to on-call are clearly made in the ET1, Section 8.2. It appears that prior to the Preliminary Hearing it was not clear to the respondent that the claim was solely in relation to on-call payments and that the claimant's reference to wages in her email of 26 October 2017 was a reference to on-call payments.[10]That being the case, the Tribunal is satisfied that this is not a situation in which new factual allegations are being made which change the basis of the existing claim. Rather, this is the addition of another label to facts already pled. With reference to the Selkent case, the Tribunal treats this as a minor amendment. Therefore, the amendment is allowed and the claim will proceed as a claim under Section 13 of the Employment Rights Act 1996. The breach of contract claim will also proceed.Introduction
[1]The claimant was unrepresented. The respondent was represented by Katherine Irvine. The claimant produced a bundle of documents. The claimant and Ms Irvine put forward representations and submissions to the Tribunal. No evidence was led. The issue E.T. Z4 (WR)[2]The issue to be determined by the Tribunal was whether to allow the claim to be amended to include claims of automatic unfair dismissal.Background
[3]The claimant was employed by the respondent from 20 June 2016 until 6 June 2017. The claim for unfair dismissal and breach of contract was received by the Employment Tribunal on 14 June 2017.[4]A Preliminary Hearing took place on 23 February 2018. The issues to be determined by the Tribunal were:(a) whether the claimant had sufficient service to claim unfair dismissal, and(b) whether an application to include a wages claim (as well as breach of contract) should be accepted.[5]A judgment was issued on 10 March 2018. The claim for unfair dismissal was dismissed as the claimant does not have the necessary qualifying service. The application to include a wages claim was accepted.[6]By email dated 15 March 2018 the claimant requested reconsideration in respect of the dismissal of the unfair dismissal claim. The claimant explained that she was aware she did not meet the requirements of section 108 of the Employment Rights Act 1996 (which requires two years of continuous service to claim unfair dismissal). However, the claimant stated that she had material on which to prove how she had been unfairly dismissed.[7]By email dated 7 April 2018 the Tribunal refused the application for reconsideration on the basis that there was no reasonable prospect of the original decision being varied or revoked.[8]By emails dated 9 and 15 April 2018 the claimant stated that she believed she would meet the exceptions to the rule under section 108. By email dated 2 May 2018 the claimant was asked to confirm to the Tribunal which of the exceptions to section 108 she says applies, as this had not been stated in the claim form.[9]By email dated 3 May 2018 the claimant stated the following: “I can confirm the exceptions to Section 108 of Employment Right Act 1996 that applies are:• Working time regulations – dismissal for asserting rights under the Working Time Regulations 1998, SI No.1833 s101A ERA.• Right to be accompanied at disciplinary or grievance hearing or a meeting under the statutory retirement procedure.• National Minimum Wage – dismissal in connection with an attempt to exercise any right under the National Minimum Wage Act or seek enforcement of the National Minimum Wage s104A ERA.”[10]By email dated 8 May 2018 the Tribunal explained to the parties that the Employment Judge’s provisional view was that the email of 3 May 2018 should be treated as an application to amend the claim to introduce a claim of automatic unfair dismissal. Following receipt of written representations from both parties, the Tribunal decided to hold a Preliminary Hearing.[11]At the Preliminary Hearing it was explained that although the Preliminary Hearing arose from a reconsideration application, the original judgment which dismissed the unfair dismissal claim due to the claimant not having a sufficient length of service was not being reconsidered. Rather, the Preliminary Hearing was set down to consider whether the claim in respect of wages / breach of contract should be amended to include claims of automatic unfair dismissal. The submissions[12]The claimant made submissions first, followed by Ms Irvine and the claimant then provided her response.[13]The following is a summary of the points put forward by the claimant:a. Within the ET1 she tried to be as clear as she could. It is very complicated as there is so much involved. She ticked the unfair dismissal box because as far as she is concerned she was unfairly dismissed. In section 8.2 of the form, there are only so many characters which you can use (she submitted the claim online).b. The respondent did not give her answers when she questioned her rate of pay. The Finance Director would never give her confirmation of her hourly rate.c. She raised a grievance and stated in the grievance that she had gone to various people and followed procedures.d. The response to the Tribunal claim from the respondent refers to concerns around her work conduct. She considers these to be false allegations. The respondent had asked her to come back to work for them after she had worked there previously. Her appraisals were good.e. The company handbook states that a grievance meeting should take place within three or four days and that she is allowed to bring somebody along with her if she wishes. She sent in her grievance at 9:20pm on the Monday evening (5 June 2017). She was due to start work at 12 noon the following day. At around 1:00pm on 6 June 2017 she was asked by the company secretary to have a chat, and a meeting took place which the company director also attended. The claimant thought that they would tell her the issues raised in her grievance would be sorted out. Instead, they stated that it would be best if the claimant left and did not work her notice. She was asked to leave as soon as possible.f. In response to a question from the Employment Judge as to why this information was not in the ET1, the claimant stated again that there was only a certain amount of characters in the online form. She put in what she could to make the claim sound and she tried her hardest to make it clear. She sees the issue about the ET1 form, however her concerns are set out in the grievance which she raised.g. In response to a question from the Employment Judge as to what the issues were which she raised in her grievance, the claimant stated that the issues were:(1) pay,(2) she had tried to resolve this before putting in the grievance,(3) she had tried to ask the Finance Director but never received a direct answer, and(4) she had to chase up her contract of employment for so long.h. In response to a question from the Employment Judge as to what the pay issue was, the claimant stated that the issue was on-call pay and her hourly rate. She stated that if she was on an hourly rate then she would have been able to work out what they had paid her for on-call. She stated that one minute she had been told she was on an hourly rate and then she was told she was salaried.i. Even though she started on 20 June 2016, she did not receive a contract employment until September 2016. Part of her grievance was to let the company know that it had been a long process to even receive a contract. She felt like they did not care about her.j. In response to a question from the Employment Judge regarding the relevance of the Working Time Regulations (with reference to the claimant’s email of 3 May 2018), the claimant stated that she did not know and that she was confused. When asked by Ms Irvine to provide further information in relation to this, the claimant stated that she did not know how to answer the question. When asked by the Employment Judge whether she was saying that she was asserting rights under the Working Time Regulations, the claimant stated that she was trying to find her rights but she did not receive an answer to her questions. She wanted to know what her rights were, but everything was hidden from her. She believes she has been exploited.k. When asked by the Employment Judge to expand on the second bullet point of her email of 3 May 2018, the claimant stated that the company did not follow its own handbook or procedure. She had not even been given a chance to have a grievance meeting.l. When asked by the Employment Judge to provide further information with regard to the national minimum wage issue raised in her email of 3 May 2018, the claimant stated that she had tried so hard to find out what her pay was and what her minimal pay was, but that information had never been given to her. It had always been very vague. When she received her wage slip after starting in June 2016, the amount she received was more than she had expected, and this was confusing. She does not think the Finance Director knew herself what her pay was or should be. She received no answer as to what her hourly rate was, or even if she had an hourly rate. She wanted to end this confusion. Her queries about pay were ignored.m. When she started her first period of employment with the respondent, in 2014, she had concerns about how the company was addressing annual leave. She did not think it was right but did not question it too much. She is concerned with the way they work out holidays for agency staff.n. When asked by the Employment Judge whether she is saying that she had been looking for clarification around her pay, the claimant said that was correct. She was looking for clarification on how her on-call pay worked, as it had gone up.o. They let her go because she handed in a grievance letter. There were problems they did not want to deal with and they wanted to brush it under the carpet. There was no indication of any problem with her work conduct, and they let her go within one day after she sent in her grievance.p. After having heard from Ms Irvine for the respondent, the claimant stated that everything had mentioned on-call, fair pay and her dismissal. It’s about these three things. These same things have been said time and again. Legally, she does not know how else to word it. She has made it clear that she was let go only one day after her grievance was submitted and after trying to find out information which they did not wish to talk about.q. She had mentioned fair pay and national minimum wage and did not know if they were paying her the national minimum wage. She is trying to be as simple and straightforward as possible. When asked by the Employment Judge to confirm when she mentioned fair pay and national minimum wage, the claimant stated that she raised this at the Preliminary Hearing on 23 February 2018.[14]The following is a summary of the points put forward by Ms Irvine on behalf of the respondent:a. Ms Irvine firstly referred to an email she sent to the Tribunal on 10 May 2018. That email set out the respondent’s objections to the application to amend. In summary, the email states the following: i. The claimant is seeking to introduce entirely new heads of claim. These are not merely amending the factual or legal basis of an existing claim. At no previous stage had the claimant sought to put forward any legal claim of automatic unfair dismissal linked to any of the section 108 exemptions, and this cannot be implied from the existing ET1. ii. With reference to the case of Selkent Bus Co v Moore the Tribunal should balance the injustice and hardship of allowing the amendment against the injustice and hardship or refusing it. iii. This claim is becoming a movable feast with the claimant attempting to widen the scope and nature of the claim despite already having had the opportunity to do so at the last Preliminary Hearing (after which she was allowed to amend in a claim of unlawful deduction of wages). The respondent faces a considerably lengthened hearing and will require additional witnesses, if the new claims are allowed to proceed. iv. The claimant has provided no details of the facts upon which the new heads of claim are based. It would be usual and expected for the factual and legal basis for the claims seeking to be amended to be fully and clearly set out. v. All of the new claims have been brought out of time, and well outwith the usual three month time period from the date of dismissal. The claimant’s dismissal was 6 June 2017, so almost a year has passed. The claimant has put forward no explanation as to why she says it was not reasonably practicable to have brought the claims on time. vi. At the Preliminary Hearing on 23 February 2018 the claimant did not allege any attempts to exercise any rights under the Working Time Regulations, the right to be accompanied or the National Minimum Wage Act.b. The email of 10 May 2018 placed the claimant on notice of the need to provide clear factual background as to the basis for the claims she is seeking to introduce. However, she has not done that. Ms Irvine is still unclear as to what the claimant says is the basis of the claims being sought to be introduced.c. With regard to the right to be accompanied, one must ask for that. In response to the Employment Judge pointing out that the claimant’s grievance states that she wished to be accompanied, Ms Irvine stated that the claimant’s issue appears to be that she was denied the opportunity to have a grievance at all, not the right to be accompanied. The claim which the claimant is trying to introduce is that she was dismissed because she sought the right to be accompanied. (In response to this, the claimant stated that she had not been allowed the chance to have a neutral representative to speak on her behalf.)d. With regard to balancing hardship, the claimant had indicated previously that she obtained new employment in August 2017, and Ms Irvine initially stated this is relevant in terms of the potential value of any claim for unfair dismissal. However, following comments from the claimant that she had only worked in August for one and a half weeks because of her health and that she has not been in employment since then and is suffering both financially and emotionally as a result of what has happened, Ms Irvine stated that her comment regarding this is withdrawn and is not to be taken into account by the Tribunal.e. A claim for unfair dismissal would substantially lengthen the duration of the hearing. The claims are out of time and previously there has been no hint of issues regarding the Working Time Regulations, national minimum wage or the right to be accompanied.f. With regards to the online form ET1, the claimant completed section 15 of the form which provides plenty of opportunity to add any additional information. However, this had not been done.g. The claimant’s bundle of documents include correspondence between the claimant and ACAS in October 2017, so if the claimant had been in any doubt then she could have taken advice from ACAS. This would have been an opportunity to identify what claims were to be brought, even if the claimant did not necessarily know about, for example, Working Time Regulations or the national minimum wage.h. The correspondence with ACAS shows that the claimant was aware of concerns which the respondent had. (The claimant responded by explaining that she had prepared detailed statements and it all happened within the same week and she wanted matters to be resolved).i. This appears to be a dispute about the level of pay, or how pay was reflected in terms of hours worked, rather than breach of the Working Time Regulations or national minimum wage. The claimant states that her pay was higher than she was expecting, rather than lower.j. The only mention of the Working Time Regulations was in a reference to agency workers.k. The Employment Judge pointed out that the ET3 anticipated an argument that the dismissal was related to the bringing of the grievance. Ms Irvine stated that they (i.e. the company she works for) generally try to cover off issues when a claim is unclear, and this itself would have put the claimant on fair notice that she could have set out the basis for any such claim prior to the first Preliminary Hearing and prior to this Preliminary Hearing. It is not for the respondent to set out the claimant’s case. Discussion and conclusion[15]With reference to the Selkent case, one of the factors to be taken into account is the nature of the amendment and whether the amendment sought is a minor matter or a substantial alteration which changes the basis of the existing claim.[16]Although the ET1 included a claim of unfair dismissal, the only reference to the dismissal is in the following statement (which has been anonymised for the purposes of this judgment): “I sent a grievance letter via email to the company and finance director and the next day of work was asked if I had a sec to where was taking into the board room by [the company lawyer], to where [the company director] came as made decision that they wished to let me go.”[17]There is nothing in the ET1 which indicates the claimant was alleging that her dismissal was for any of the reasons subsequently set out in her email to the Tribunal of 3 May 2018. The claimant is therefore seeking to introduce a claim of automatic unfair dismissal, which is a claim not envisaged in the ET1. This would be a substantial alteration and a new cause of action.[18]At the Preliminary Hearing the claimant was clear that she believes the reason she was dismissed is because she had submitted her grievance. The following is the relevant extract from her grievance, anonymised for the purposes of this judgment: “I have had issue’s in regards to my pay since 2 months of re-joining ScotNursing in June 2016 (Monday 19th). Within a couple of weeks, I had spoken to my Line Manager [name] regarding how my pay works on my return to which she advised me that I would have to go and speak to [the Finance Director] regarding that as she deals with those matters, to which I did follow her advice. I felt that when I did question [the Finance Director] in regards to my pay, she was very vague with her answer. I then lay off the issue for a few weeks as I thought that because my return was so sudden - it may take some time to get my file on record again. After a few weeks of space, I had an issue in regards to my pay and I approached [the Finance Director]. I also, enquired about my contract of employment - which I still hadn’t had as this was now going onto the second month. I had several confidential chats with [the Finance Director] regarding chasing up my contact of employment, as this would most possibly help me understand the issue I’m having as we were now into 3 months of this on going issue. I then received my contact of employment on 25th August 2016. I didn’t sign it straight away as I wished to go over some things stated in the contract - to which I was suppose to speak with [the Finance Director]. The company Lawyer [name] e-mailed me querying that my contract hadn’t been given back and if any problems that can help with, in which I did reply - to advise her I was waiting on a chat with [the Finance Director]. [Name] had advised me that if she could assist me, she would be there for help. I tried to resolve this issue on my own - which clearly is appearing to be extremely difficult – with [line manager] and [the Finance Director] for months to the point where it was now the New Year of 2017. In mid January 2017 I arranged a meeting with [lawyer] on my day off to go over some issues I was experiencing. At the end of the meeting, which was held at the Head Office on 4th floor suite [she] advised me that she will now take all my information I provided her with and arrange to sit with [the company director] and [the Finance Director] and go over things i.e. job descriptions, pay etc and getting New Contract of Employment. Before I left the head office, I had filled out Core Staff Holiday Request forms out for almost the whole year head as being organised is in my character and passed them to [line manager] for approval. Since the meeting with [lawyer] in January 31st 2017, it has been a very much extremely slow process in the little changes being made to which has made issues at ScotNursing very difficult to cope with as this has caused me major issues to my life outside of work. As I have been going back and forth due to very poor communication and the issue is still unresolved, I believe I am on Stage 3 of the Grievance procedure.”[19]The grievance concludes with the following: “I look forward to your response with the details of the arranged Grievance Meeting - which is noted in ScotNursing Handbook 2017 ‘an interview will be arranged within 3 working days’. Where we can have a discussion and hopefully come to a solution. I would also like to be accompanied by a natural party.”[20]On reading the grievance, it is clear the claimant was not asserting rights under the Working Time Regulations 1998. When asked to provide further information regarding her reference to this in her email of 3 May 2018, the claimant was unable to do so. The claimant has not produced any information, either in the ET1 or at the Preliminary Hearing, to indicate there is any basis for a claim under section 101A of the Employment Rights Act 1996, which is the statutory provision referred to in the claimant’s email of 3 May 2018.[21]With regard to wages, the claimant is clear that the issue which she was trying to resolve at work was on-call pay and her hourly rate, and indeed whether there was an hourly rate at all. The claimant says she was confused by vague information provided to her. She explained that when she received her wage slip after starting in June 2016, the amount she received was more than she had expected, which was confusing. The grievance is consistent with the claimant having concerns about her pay and how it had been calculated. However, the claimant said nothing to suggest that during her employment she raised concerns about the national minimum wage. The claimant’s grievance makes no mention of the national minimum wage. The claimant has not produced any information, either in the ET1 or at the Preliminary Hearing, to indicate that there is any basis for a claim under section 104A of the Employment Rights Act 1996, which is the statutory provision referred to in the claimant’s email of 3 May 2018.[22]Although the claimant’s grievance refers to her wish to be accompanied, it is clear the claimant’s concern was (and is) that a grievance meeting did not take place and that she did not have the opportunity to discuss her grievance at a meeting. The claimant believes she was dismissed simply because she had raised the grievance. The claimant is not claiming that the fact she concluded her grievance with a statement that she wished to be accompanied was the reason for her dismissal. Rather, her complaint is that it was the raising of the grievance itself, i.e. the whole grievance, which is the reason for her dismissal.[23]The email of 3 May 2018 also refers to the statutory retirement procedure. The claimant provided no information with regard to this, and it is not clear what this claim would be or on what basis it would be brought. This is not considered to be relevant.[24]The claimant is therefore relying on three grounds for automatic unfair dismissal, referred to in her email of 3 May 2018. However, no basis for such a claim has been presented. As such, the claimant is seeking to make a substantial alteration to her claim, but without presenting a basis on which to do so.[25]The time limit for raising an unfair dismissal claim expired on 6 September 2017, i.e. three months less one day from the date of termination of employment plus the period of early conciliation, which lasted one day. Therefore, the amendment application (i.e. the email of 3 May 2018) was presented almost eight months out of time. No information has been presented to suggest it was not reasonably practicable for such a claim to be presented in time.[26]It is accepted that the claimant, who is unrepresented, cannot be expected to use legal language. However, the claimant provides in section 8.2 of the ET1 quite some detail regarding her concerns around shift patterns and on-call pay and states that she tried to resolve these issues. If the claimant had been concerned that her dismissal was for some other reason, she could have included this within her ET1 even in basic terms and without using legal language (and if necessary she could have used section 15 of the ET1). The Tribunal considers it would have been reasonably practicable for her to do so. In any event, having raised the new claim out of time, no basis for the claim has been provided.[27]It is important for the Tribunal to consider whether allowing, or not allowing, the amendment would cause injustice or hardship to either party. If the amendment is not allowed the claimant will be unable to claim financial loss beyond the termination of her employment. On the other hand, if the amendment was to be allowed the respondent would need to defend allegations that the dismissal was for one or more prohibited reasons, in circumstances where the claimant is not providing any basis for such allegations, and the onus is on the claimant to do so. This would require evidence to be led regarding the reason for dismissal, which would increase the length of the hearing and risk the claim being run as essentially a standard claim of unfair dismissal in circumstances where the law operates to prevent such claims where employees have less than two years of service. Given the legal parameters, that would not be a just way for the case to proceed.[28]For the reasons set out above, the application to amend the claim to include claims of automatic unfair dismissal is refused.[29]The claim will proceed as a claim for breach of contract and unauthorised deductions from wages.Background
[1]The claimant presented a claim of a breach of contract, unauthorised deduction of wages, and unfair of dismissal on 14 June 2018. The claimant lacked sufficient qualifying service to present a claim of unfair dismissal, and this claim proceeds only as one of unauthorised deduction of wages and breach of contract.[2]The claimant had earlier made an application to amend to include a claim of automatically unfair dismissal on the grounds that she was dismissed because she exercised a statutory right, however this had been refused. E.T. Z4 (WR)[3]The issues before the Tribunal were:(i) breach of contract claim; whether the respondents had acted in breach of the claimant’s contract of employment, and if so what the damages flowed from that breach.(ii) unauthorised deduction of wages claim; whether the respondents had made any other unauthorised deductions from the claimant’s wages under section 13 of the ERA, and if so, how much. This requires the Tribunal to determine the wages which were properly payable to the claimant.[4]The claimant gave evidence on her own behalf, and evidence was given by her father, Mr Mustafa, and her sister, Miss Plerte Mustafa.[5]For the respondent’s evidence was given by Mrs Paula Lickrish, Office manager, Mr Robert Hall, Deputy Manager, Miss Anne Sinclair, the Finance Director, and Mrs Morvan Finlayson the Company Secretary.[6]The respondents produced a bundle of documents, to include documents provided by the claimant in compliance with directions issued at a PH for Case Management purposes which took place on 23 February 2018[7]In the course of that Case Management PH the claimant indicated that she wished to introduce into evidence a recording of telephone conversations which she had with the tax office, in which she was told that she was not registered with the respondents for tax purposes. The claimant was directed to produce the recording, and the transcript of it, to the respondents.[8]The claimant supplied the respondents with a disc, but no transcript of the recordings. Mr Haynes, appearing for the respondents, told the Tribunal that that that the disc which the claimant supplied was inaudible.[9]Ultimately the respondents accepted for the purposes of this Hearing that the claimant made four telephone calls to the tax office on 1 July 2016, 25 January 2017, 23 February 2017 and 23 March 2017 and that she was told on those occasions that she was not registered for tax purposes with the respondents. This concession having been made by the respondents, it was unnecessary for the Tribunal to listen to the audio recording or for it to be introduced into evidence. Findings in Facts[10]The respondents are a nursing and care agency, engaged in the business of making arrangements for the provision of nursing and care staff on an agency basis. Part of their work is carried out within a call centre, which is manned by call centre staff.[11]The claimant, whose date of birth is 03/04/1995, was employed by the respondents in the period from October 2014 to March 2015. The claimant left her employment with the respondents in March 2015 to travel to Australia.[12]When the claimant returned to the UK she was contacted by the respondents, who advised they had a vacancy. The claimant began working again with the respondents on 20 June 2016 and remained employed with them, until her employment was terminated by them on 6 June 2017.[13]On both occasions the claimant was employed as a call centre staff member. The function of that job is to place agency staff in suitable work places.[14]The respondents operate their business on a 24/7 basis. Prior to October 2014, call centre staff worked 9am to 5pm, Monday to Friday. From October 2015, in consultation with staff, this was changed, so the call centre staff worked a twelve-hour shift pattern (8.30am to 8.30pm), two days on, two days off, on a four-weekly rotation. Call centre staff were split into two teams (a Green Team and a Red Team). Depending on the number of staff members operating within each team, staff were obliged to provide on- call cover every 3rd or 4th shift they worked. On-call cover was provided from 8.30pm (following the completion of a shift), until 7.30am when a handover took place to the shift the following day.[15]The call centre teams had from time to time, either three or four members of staff in each team. The hours which each team member worked varied per week, depending on the rotation, but over a four-week rotation, each team member worked 140 hours in the call centre office, and in addition to that covered on call duties on a rotational basis, either every third or fourth shift, depending on the number of members of staff in their team at a particular time.[16]The changes introduced in October meant that call centre staff worked less hours in the call centre over a 4-week rotation than they had previously, but they also dealt with on-call.[17]Prior to the introduction of these changes, call centre staff received flat rate payments for covering an on-call shift.[18]From October call centre staff had the option, on a voluntary basis, to cover on- call in addition to their rostered on- call duties, and this was remunerated at a flat rate of £20 per on -call shift covered during the week, and £30 per on -call shift covered at the weekend. Overtime was also available to call centre of staff on a voluntary basis. The overtime rate of pay was worked out by dividing the staff members’ salary by 37.5 hours per week.[19]The purpose of on -call was to deal with out of office queries in relation to the placing of staff. The member of staff who was responsible for on- call was provided with a laptop, and a telephone. They were expected to log on to the laptop to deal with a query. They were not permitted to use the telephone provided for anything other than business use.[20]There was no restriction on where on -call could be performed, other than that person performing on -call had to have access to Wi-Fi and a telephone signal. The person on call was not permitted to drink alcohol while on call. It was the expectation that telephone calls be taken in a quiet environment, where there was no loud music or noise in the background.[21]The majority of on -call queries occurred either at the beginning or the end of the on-call period, although on -call enquiries could come in at any point. A significant number of on call telephone calls were from staff running late for a shift. A significant number of the on-call queries could be dealt with reasonably shortly, although this was not always the case.[22]On call activity was recorded by the person covering on call on ‘on callsheets’. This recorded, among other things, the time of the call within a particular band, the frequency of the calls, and what activity was undertaken in response to them. The sheets produced by the claimant when she was covering on-call are produced at 141 to 162.[23]The respondent’s staff agreed to the changes proposed in October 2014, and the business thereafter operated on that basis.[24]When the claimant first commenced working with the respondents in October 2014 she was interviewed by Anne Sinclair, Finance Director, and Paula Lickrish (Ms Sinclair’s daughter), one of the managers. The claimant started working 9am-5pm for a period of around two weeks as part of her induction and then moved to shift working. She thereafter worked the shift pattern described above, including covering on call. The claimant was paid a fixed salary for the work which she performed.[25]On the claimant’s returning to work with the respondents in June 2016 the process was less formal. She was spoken to by Anne Sinclair, who told her that everything effectively was the same as before in terms of working hours, and payments.[26]During the second period of her employment, the claimant again worked 9am-5pm for a period of just less than 2 weeks, and then moved to the shift pattern as described above, which included covering on-call.[27]In the period from11/07/16 until 12/05/15 the claimant was rostered to cover 48 -on call shifts, which covered a total period of 3,410 hours. The claimants on call log on activity for those shifts, over that period, and the on-call sheets which she completed recording the on-call activity, indicated that she performed a total of 41 hours of work over that period ( page163 to 165).[28]The claimant asked the respondents for a contract of employment. She did not receive this immediately, but she did receive a contract of employment on 27 September 2017 (page 75 to 81), which she signed.[29]The contract is dated 25 August 2016, and sates that claimant held the position of ‘call centre core staff member’ and her start date was 20 June 2016. The contract stated on the first page; ‘salary per annum: £16,867.44, hours of work: 37.5 hours per week’.[30]Clause 3 of the contract under ‘Hours of Work’, states: ‘Given the nature of the Company’s business and the need for flexibility in order to meet the change in requirements of the business, it is expected that all staff will be flexible in relation to their working hours. The normal working hours however staff will be as follows:3.1 For nursing, caring and call centre agreed hours will be worked each month (see front page) on a shift rota basis at such times as may be required by the Company on the request of the Director/Chief Executive.3.2 For office-based personnel involved in administration, the normal working hours are 9.00 am to 5.30 pm with one hour for lunch or 09.00 am to 5.00 pm with half an hour for lunch. You will be required to work such hours as are necessary in order to perform your duties and you may therefore be required to work additional hours beyond those hours from time to time in order to meet the needs of the business. You will not be entitled to additional remuneration in respect of any such additional hours worked.’[31]The contract provided at clause 7 for a probationary period, stating that the policy was in the staff handbook.[32]The claimant was paid a fixed salary every per calendar month during both periods of employment with the respondents. On some occasions she earned overtime in respect of additional hours or on call shifts she worked.[33]At some point after commencement of her employment the claimant approached Ms Sinclair, to query if she was on a probationary period. She was told by Ms Sinclair that she was, and that the probationary period was 3-6 months, but that she was not being paid at a probationary rate, and therefore if she passed her probationary period, she would not receive an increase in salary.[34]The claimant began to become concerned about when she was paid for on call. She spoke to her manager, Paula Lickrish, about this, and was told by Ms Lickrish that she did not deal with it. The claimant spoke to Anne Sinclair after she received her first salary. Ms Sinclair told her that she was paid a salary.[35]The claimant continued to be concerned about how much she was paid and she contacted the respondent’s Company’s Secretary, Miss Finlayson, around January 2017 to take matters up with her.[36]A meeting was arranged between the claimant and Ms Finlayson on 31 January 2017 and Miss Finlayson’s handwritten notes of this are produced at page 222. The claimant queried how her salary worked, and how the oncall element of her job was remunerated.[37]Mis Finlayson told the claimant that she would need to speak to Ms Sinclair for clarification, but she did confirm to the claimant that she was paid on the basis of a set salary and was not hourly paid.[38]Ms Finlayson did speak to Ms Sinclair; however, the claimant heard nothing further, and in February she again contacted Ms Finlayson to ask about the position. Another meeting took place on 28 February 2017 (page 229) Ms Finlayson explained that on call was no longer going to be carried out by the call centre staff, as the respondents had taken a decision to commence a night shift in order to employing staff to carry out administrative duties, and to cover on call. This arrangement was not implemented until sometime later.[39]The claimant continued to be unhappy and met again with Miss Finlayson on 23 May 2017 (page 230) when she again reiterated to her that on call would no longer needed to be covered.[40]The claimant also queried the position in relation to her tax position. The claimant contacted the Inland Revenue on four occasions; on the 1st of July 2106; 25 July 2017; 23rd February 2107; and 23rd March 2017 when she was told that she was not registered with the respondents for tax purposes.[41]The claimant was dismissed from her employment on 20 June 2017. Note on Evidence[42]The Tribunal heard from a number of witnesses in this case, however not all of the evidence which it heard was necessarily relevant to the issues which it had to determine. The claimant’s father and sister both gave evidence as to the effect which performing on call duties had upon her, and to the extent of the work which on -call involved. That was to the effect that it was very onerous, and that the claimant spent a very considerable time at home on this work, and that she could not do anything else if she was on call.[43]Mr Mustafa’s evidence was that the claimant was living with him at home for the entire duration of her employment with the respondents. On the claimant’s own evidence that this was not the case, and this inconsistency impacted adversely on the tribunal’s assessment of Mr Mustafa’s credibility as to the extent of the work involved for the claimant on being on call.[44]Miss Mustafa accepted that she did not live with the claimant during the entire period when she was performing on call, but she spoke to the restrictions which the claimant was working under when she performed on call, which are dealt with below. On balance and for the reasons outlined, the Tribunal preferred the evidence of Mr Hall as to the requirements and restrictions of on call.[45]The claimant became emotional and upset on at least two occasions on giving her evidence, and the Tribunal formed the impression that she was genuinely distressed and upset. However, the Tribunal also formed the opinion that on some occasions the claimant’s evidence was coloured by her perception that she had been very badly treated by the respondents.[46]The Tribunal formed this impression in relation to her evidence as to what was required of her on call. The claimant’s evidence was that she regularly worked long hours on call and that she was restricted from doing anything at all or going anywhere because of being on call. She said sometimes she was up all night. The Tribunal was not persuaded that this was the case. It preferred the evidence of Mr Hall on this point. He gave his evidence in an entirely reasonable manner as to the requirements of on call. He had no obvious motive to be anything other than truthful, and he accepted there were some limitations while on call. Those were that it was necessary to be range of the telephone, and a Wi-Fi signal, and to take the calls in a quiet space, and not to drink alcohol. His evidence was however, that other than that there were no other restrictions. He said being on -call was not overly restrictive and he was able to carry on with many normal activities, he gave the examples of going out for dinner, or taking his dog for a walk. He said he could get on with most things. That was in direct contract to the claimant’s evidence which was to the effect that she was prevented from going out at all or doing anything.[47]Mr Hall also confirmed that the bulk of the on- call work was performed either at the beginning or the end of the on-call period. The tribunal was satisfied that his evidence on this matter was to be accepted, having regard to the nature of the on-call service, and the on-call sheets which were produced in the bundle.[48]The Tribunal was also satisfied that the time spent performing work during the on-call period was significantly less that the whole on call period. It was supported in this conclusion by the evidence of Ms Lickerish, and a document which she has produced (page 163 to 165) which contained an analysis of the claimant’s log on activity, which was indicative of the amount of work performed by her, during her in call shifts. This indicated that during the on-call periods where the claimant worked from 11 July 2016 until May 2017 (which covered a total of 3,410 hours) she performed 41 hours of work. Albeit the claimant suggested that she worked extensively during the on-call shifts, there was no significant challenge to this document, or to the information contained on the claimant’s on-call sheets (which had been completed by her), which were included in the bundle, and which formed the basis of the respondent’s analysis of the time spent working, Miss Lickrish[49]The Tribunal formed the impression that Miss Lickrish’s evidence was credible and reliable. She spoke to the shift patterns and the changes which were made in October 2014, and the requirements of on call. Mr Hall[50]The Tribunal found Mr Hall to be a credible and reliable witness. He spoke to shift arrangements, and to the on-call arrangements, and as indicated above his evidence on these matters was convincing. Anne Sinclair[51]There was an issue as to the extent to which the claimant had discussed her queries about how she was paid with Ms Sinclair and what she had been told. The claimant’s position was that she had enquired about this on several occasions and had been given conflicting information about being paid at an hourly rate, and she was also told that she had been paid a salary. Ms Sinclair’s evidence was that the claimant had approached her to query about a salary increase when she completed the probationary period and was told by her that she was on a probationary period, but not on a probationary salary rate.[52]The Tribunal was satisfied that this occurred, and it was also satisfied on balance that the claimant had spoken to Miss Sinclair on more than one occasion about her salary, even though Ms Sinclair denied this. It appeared plausible to the Tribunal that he claimant would have gone to Ms Sinclair with theses issues, as the she was the Finance Director.[53]Albeit the Tribunal was satisfied there had been some discussions between the claimant and Ms Sinclair, it was not satisfied that Ms Sinclair told her she was paid an hourly rate, and rather the tribunal concluded on balance that Ms Sinclair told the claimant that she was paid a salary. The Tribunal reached this conclusion, on the basis that as the Financial Director, it would have been unlikely that Miss Sinclair would have told the claimant she was being paid at an hourly rate, given the terms on which the contract she and other call centre staff were on. Miss Finlayson[54]The Tribunal formed the impression Miss Finlayson was a credible and reliable witness. She gave evidence as to the approach which was made by the claimant in January 2017 querying the how on call was paid and the steps she took thereafter. Miss Finlayson had taken notes, which the meetings she had with the claimant, and the Tribunal had no reason not to accept her evidence as to what was discussed in the course of those meetings.[55]There was an issue in relation to Ms Sinclair and Ms Finlayson’s evidence as to the reason why the respondents began to employ nightshift staff. It was put to them on cross examination, that this was done because of the concerns the claimant raised about on -call. Ms Finlayson did not take any part in the decision, and therefore her evidence has limited value on this, but she understood it was because the administrative tasks had become heavier, and it was decided to employ nightshift to assist with these.[56]It was Mis Sinclair’s evidence that this decision was taken because the day time administrative staff had become busier, and the respondents decided to employ night shift staff to help with the administrative tasks, and they could also cover on call. The reason why the respondents decided to employ nightshift staff is not directly relevant to the issues which the Tribunal has to determine this case, there was however, no evidence before the Tribunal which suggested that the respondent’s witnesses misled the Tribunal on this point. Submissions Claimant’s submissions[57]The claimant submitted that the respondents breached her contract and failed to pay wages which were due to her. She submitted that when she was first employed by them she was naïve and did not know her rights, and she was given minimum information by the respondents.[58]The claimants said she was pressured into signing a contract of employment in October 2017, and she felt that if she did not sign this, she might lose her job. The claimant said she requested information numerous times at one to one meetings with Anne Sinclair but had not been provided with any. The claimant said she had suffered a huge amount of stress, anxiety and financial loss, which was indescribable because of the respondent’s actions. She submitted they had completely ruined her mentally. The respondents had treated her unfairly throughout, and the claimant asked the Tribunal to make the right decision.[59]The claimant sought compensation for the hours which she had worked on call, at the rate of four times the overtime rate which she would have received for working overtime, on the basis of the loss which she had been occasioned to her. Respondent’s submissions[60]Mr Haynes for the respondents submitted that the claimant was employed on the basis of a fixed salary. The contract provided that she worked 37.5 hours per week. This reference to hours was a red herring. If the claimant worked 37.5 hours x 52 divided by 12months then she worked 162.5 hours per calendar month. The claimant was only asked to work 140 hours every four weeks, if an hourly rate were looked at she therefore worked in the office less hours than provided for in the contract. The work performed during on call periods was minimal.[61]The claimant was aware of the terms and conditions under which she was employed. She had worked under these terms and conditions in October 2014, and returned on the same basis, and again worked under those terms and conditions. She was well aware of the requirement to work shifts, and to provide on call cover.[62]In the event that the Tribunal was not with them on that position, and the claimant was to be paid on an hourly rate, she had already been paid for 22.5 hours of on call work each month. Consideration Breach of contract claimConsideration
[63]The amount of the claimant’s claim as outlined in the documents produced for the hearing, is £21,165.04. This is based on the hours of on call which she worked multiplied by 4 times an hourly rate of £8.66 per hour.[64]There would be some adjustment to this figure, on the basis that in the course of the hearing, an exercise was conducted where evidence was taken from the claimant about the hours of on call which she recorded she had worked in a Document at page 31 /32. This resulted in the on-call hours which the claimant covered being agreed (a total of 3,410 hours). This figure is slightly different to that used by the claimant in her calculation.[65]The claimant in any event however submitted that sum of £21,165.04 should be trebled, given the respondents had broken the law, and her overall claim was for £55,000.[66]Regardless of any adjustment which might be made to that calculation of the number of hours of on-call covered by the claimant, the first issue for the Tribunal is firstly to determine whether there has been a breach of the claimant’s contract of employment.[67]The claimant was issued with a written contract of employment, which set out the express terms of the contract between the parties. The express terms in relation to pay and hours of work are set out above in the Findings in Fact.[68]Those were firstly, the claimant’s annual salary was £16,887.[69]Secondly the hours of work were 37.5 hours per week.[70]The claimant was employed as a member of the call centre staff, and therefore clause 3.1, applied. That stated; ‘agreed hours will be worked each month (see front page) on a shift rota basis as such times as may be required by the company on the request of the director/chief executive’.[71]The claimant made submissions as to the meaning of clause 3.2, submitting that the requirement to work additional hours from time to time, did not mean anything. However, the Tribunal did not consider that clause 3.2 had any relevance to the claimant’s position, as she was identified in terms of the contract as call centre staff, (to whom clause3.1 is stated to apply) and3.2 made provision for office-based personnel involved in administration[72]The Tribunal understands the claimant to claim the respondents are in breach of her contract of employment by failing to pay her wages which were due to her, specifically, for the provision of on call cover, when she was rostered to provide this.[73]The claimant’s contract states that her entitlement is to payment of a salary of £16,867.44.[74]There was no evidence to support the conclusion that the claimant was not paid the full amount of her salary, and indeed it was not suggested by the claimant that she was paid less than the annual salary specified in the contract of employment. Therefore, there has been no breach by the respondents of the contract, by virtue of their failing to pay the claimant the salary which she was entitled to in terms of that contract.[75]There is a degree of ambiguity of drafting of the contract, in that it states the hours of work are 37.5 hours per week, but it provides at clause 3.1 that call centre agreed hours will be worked each month (see front page on a shift rota basis) at such times as may be required by the company on the request of the director/chief executive.[76]The claimant in fact did not work 37.5 hours each week but worked 140 hours in the call centre over a four-week rotation because of the application of the shift rota, and she also required to cover on call.[77]The Tribunal considered whether the respondents requiring the claimant to perform on call duties and paying her the salary which she was contractually entitled to, where breach of the contract of employment, and if so, what damages flowed from that breach? In order to succeed in her claim, the claimant would need to satisfy the Tribunal that there was a term implied into her contract of employment to the effect that she would be paid 4 x her overtime hourly rate of £8.66, above her salary, for the hours when she was rostered for on call.[78]The Tribunal could only imply such the term if it was necessary to give business efficacy to the contract, or if it was satisfied that it was the normal custom practice to include such a term in the contract of that particular kind, or if an intention to include the term was demonstrated by the way in which the contract was performed, or that the term was so obvious that the parties the parties must have intended it.[79]A term can also be implied into a contract by virtue certain statutory provisions, including the National Minimum Wage Regulations 2015 (the Regulations).[80]A term to the effect that the claimant would be paid over and above her contracted salary for the performance of on call work at 4 times her hourly rate of pay cannot be implied on any these grounds.[81]It cannot be said that such a term was necessary to make the contract workable.[82]There was no evidence to support the conclusion that it was the custom and practice adopted within the industry in which the claimant was working, that such a term to be included without the need to be put in writing.[83]It was not possible to imply such a term on the basis of the conduct of the parties. It was clear from the evidence that employees, including the claimant, were not paid for on call unless they worked on -call shifts were over and above those they were rostered to carry out.[84]Nor could such a term be implied on the basis that the basis it was obvious that the parties intended it. This would mean term will be implied on the basis that it can be said that it was so obvious, that it goes without saying, and on the basis of the facts found the Tribunal was not satisfied that this was the case.[85]The Tribunal also considered the National Minimum Wage Regulations 2005. Employees have a statutory entitlement to the national minimum wage and a term could be implied into the claimant’s contract of employment to the effect that she was entitled to be paid at the rate applicable in terms of the Regulations.[86]The Tribunal was not addressed on this, nor was it addressed on the effect of the Regulations, the claimant’s claim being that she was due a multiple of 4 times her hourly overtime rate of pay.[87]The Tribunal was able to reach a conclusion on the number of hours where the claimant was on call in the period from 11/07/16 until12/05/17, and on the time taken up during that on call period with the performance of work, but beyond that there was no analysis before the Tribunal of the relevant pay periods, or payments made to the claimant in terms of the Regulations during those pay periods, which enabled it to conclude that there had been a breach of those Regulations, and if so what sums were due to the claimant in respect of such a breach.[88]There was no basis on which the Tribunal could conclude that there was a breach of contract which gave rise to damages. Accordingly, the claimant’s claim for breach of contract fails and is dismissed. Section 13 Claim[89]The Tribunal then considered the unauthorised deduction of wages claim. Section 13 of the ERA provides the right not to suffer unauthorised deduction of wages, and provides at section 13(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 however 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 reduction.[90]Section 27(1) of the ERA defines wages as ‘any sums payable to the worker in connection with his employment’.[91]In order to succeed in a claim in her section 13, the claimant would have to have some legal or contractual entitlement to the payment which she is claiming.[92]The claimant’s claim is set out above.[93]The task of the Tribunal here is to assess what is properly payable to the claimant. That would include an exercise of determining what was payable to the claimant in terms of the Regulations. That point was not argued before the tribunal, and as indicated above there was an insufficient analysis of the relevant pay periods in terms of the Regulations, and the amounts paid to the claimant in respect of those pay periods, to allow the Tribunal to conclude that there were wages properly due to the claimant in terms of the Regulations which had not been paid.[94]Nor was there any evidence to support the conclusion that the claimant was not paid her contractual salary (i.e. that there was a deduction from her wages which was unauthorised) and on that basis the claim under Section 13 fails.