Employment Tribunals

EMPLOYMENT TRIBUNALS Claimant: A Respondent: B Heard at: Leeds On: 8th, 9th and 10th May 2018 Before: Employment Judge Lancaster Members: Mrs JA Bowen Mrs N Arshad-Mather Representation Claimant: In person Respondent: Mr S Soor, counsel JUDGMENT 1. The claims of direct discrimination because of race and of racial harassment are dismissed. 2. The complaints of unlawful deduction from wages and/or breach of contract are stayed until 1st June 2018. Unless any further application is made on or before that date, these claims will also then be dismissed as withdrawn. Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a written request is presented by either party within 14 days of the sending of this written record of the decision. Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. EMPLOYMENT JU DGE LANCASTER DATE: 10th May 2018 Case: 1806280/2017 1 EMPLOYMENT TRIBUNALS Claimant: A Respondent: B AT A HEARING Heard at: Leeds On: 11th February 2018 Before: Employment Judge Lancaster Representation Claimant: In person Respondent: Mr S Flynn, counsel JUDGMENT 1. The remaining claims of unauthorised deductions from wages and /or breach of contract are dismissed. 2. The claim for a continuing loss of earnings following termination of employment, notwithstanding the dismissal of the discrimination claims, had no reasonable prospect of success. 3. The complaint in respect of an alleged failure to pay the National Minimum Wage rate for “sleepover” shifts had, subject only to a possible application for a stay pending any decision of the Supreme Court in the case of Mencap – Tomlinson-Blake, had no reasonable prospect of success. 4. In any event it was unreasonable for the Claimant to have continued to conduct that claim and also the complaint in respect of an alleged underpayment of the hourly rate applicable after the end of the probationary period, for the following reasons: 4.1 The Claimant was paid on or about 17th May 2018, without admission of legal liability, for a further 96 hours “sleepover” at the applicable minimum wage and for 387 hours worked after the completion of 6 months employment at an enhanced rate of £7.50 per hour. 4.2 The basis of these calculations had been explained at the original hearing on 8th May 2018 when these claims were stayed and was fully set out in the Respondent’s letter of 17th May. 4.3 This basis of calculation was entirely consistent with the documentary evidence as to what the maximum sums payable were, even if the Claimant could have established a legal entitlement to those additional monies. That is that the Claimant’s own time sheets supported a potential claim only for a further 96 hours “sleepover” and the job description in the “recruitment pack” supported an Case: 1806280/2017 2 increase only to £7.50 per hour after successful completion of the probation period. 4.4 The Claimant persisted in his claims for 120 hours “sleepover” and for an increase to £7.70 per hour in the face of the clear documentary evidence to the contrary. 4.5 On 6th February 2019 the Respondent offered to pay, again without admission of liability, the entirety of the additional claims with a waring as to costs should the Claimant refuse that offer. 5. In the circumstances the preconditions for the making of a costs order under rule 76 of the Employment Tribunals Rules of Procedure 2013 are satisfied. 6. I exercise my discretion to order the Claimant to pay costs. 7. The appropriate sum to award in respect of this hearing is £850.00 8. Under rule 65 of the Employment Tribunals Rules of Procedure 2013 I specify that the Claimant shall therefore pay the Respondents costs in the sum of £850.00 on or before 23rd April 2019. EMPLOYMENT JU DGE LANCASTER DATE 14th February 2019 Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a written request is presented by either party within 14 days of the sending of this written record of the decision. Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunaldecisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Case No: 1806280/2017 EMPLOYMENT TRIBUNALS Claimant: A Respondent: B JUDGMENT The claimant’s application dated 20th February 2019 for reconsideration of the judgment sent to the parties on 18th February 2019 is refused. REASONS There is no reasonable prospect of the original decision being varied or revoked, because The history of, and the reasons for the stay of this separated part of the claim and its subsequent reinstatement for hearing before a judge sitting alone are fully set out in the Judgments, Orders and letters from the Tribunal from 10th May 2018 to date. The substantive decision was a finding of both law and fact after considering all the available evidence and hearing submissions. There is no reason to revisit those findings. The “Recruitment Pack” does exist. It was emailed by the Respondent to both the Tribunal and the Claimant on 13th August 2018. That was the time when the Respondent confirmed that it had indeed made further payments to the Claimant on 17th May 2018 in line with the maximum hourly sum potentially due under the express provision in that document. So far as the award of costs is concerned the Respondent did offer to pay the entirety of the only two remaining additional claims as already quantified by myself in the Tribunal’s letter of 14th January 2019. The sums in question were £172.80 gross (sleepovers) and £77.40 gross (additional claimed hourly rate). There is no reason to revisit the finding that, in my discretion, the Claimant 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 1806280/2017 should, in all the circumstances, be liable to pay the Respondent’s costs. No reasons are given as to why the quantification of that costs award should be reconsidered. The Tribunal does not have power to order payment by installments. That is a matter which the parties may seek to negotiate between themselves. I have already exercised my discretion to extend the date for final payment. It is not necessary that the entire sum be paid at the same time: if the Claimant were to make a series of payments then, providing the entire sum had been paid by the due date he would be in compliance with the Order. _____________________________ Employment Judge Lancaster Date: 1st March 2019 JUDGMENT SENT TO THE PARTIES ON ..................................................................................... ...................................................................................... FOR THE TRIBUNAL OFFICE 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case: 1806280/2017 1 EMPLOYMENT TRIBUNALS Claimant: A Respondent: B AT A HEARING Heard at: Leeds On: 11th February 2019 Before: Employment Judge Lancaster Representation Claimant: In person Respondent: Mr S Flynn, counsel WRITTEN REASONS 1. Reasons for this decision were given orally at the conclusion of the hearing. The Claimant has also now requested Written Reasons for the Judgement sent to the parties on 18th February 2019 and corrected under a certificate dated 21st February 2019. 2. The remaining claims were for unauthorised deductions from wages and/or breach of contract. 3. The legal issue is therefore what was the remuneration properly payable to the Claimant under contract (as modified if applicable by the National Minimum Wage Regulations). 4. The factual issues in these claims were set out in my letter dated 14th January 2019 where I directed that the case be listed for final hearing. They are as follows: “There are only two issues still to be finally determined. Case: 1806280/2017 2 Firstly the Claimant alleges that he has still been underpaid for "sleepovers" notwithstanding the receipt of an additional £261 gross/£175.47 net. The Claimant has now been paid at the correct rate (£7.20 per hour) for 96 hours of sleepover The factual issue is therefore whether the Claimant worked 120 hours as he appears to be claiming (£864/£7.20per hour = 120 hours)or 96 hours as the Respondent sets out in its calculations. The difference stems from whether the 12 shifts were of 10 hour or 8 hour duration. Unless the Claimant can show that he in fact "worked" and is entitled to be paid for 120 hours this claim must fail. As set out in the Tribunal letter of 24th September 2018 this claim for the National Minimum Wage to cover periods during a sleepover where the Claimant was not actually working, in any event, cannot presently succeed in the light of the Court of Appeal judgement in Royal Mencap Society v Tomlinson-Blake (and associated cases) [2018] IRLR 932 [20128] EWCA Civ 1641. If the Claimant is able to show that there are a further24 hours outstanding and not paid at the rate of £7.20 (a total of £172.80 gross) then he may if he wishes apply to have this part of the claim stayed further pending determination of an appeal in the Mencap case to the Supreme Court. The Tribunal will not at this point in time be legally able to give judgement for that additional sum as this would not be following the Court of Appeal's decision. The second issue is whether the Claimant has been paid at the correct contractual hourly rate for the work he did that was In fact paid hourly. This would not include the sleepovers which were, under the contract, only payable at a fixed sum of £25. The Claimant says that he was entitled to be paid at a rate of £7.70 per hour after 6 months (an additional 50p). The Respondent says that , as set out in the Recruitment Pack, the higher rate after the end of the probationary period (which it asserts was not successfully completed in any event) is only £7.50. The Respondent has made an "ex gratia" payment of £116.10 which is an additional 30p per hour for 387 hours worked after the end of the 6 month period. Unless the Claimant can show that the correct contractual rate in his case was in fact £7.70 this claim must fail. It appears, if successful, to be worth £77.40 gross (387 x £0.20) The claim for loss of future earnings after the end of employment is, as the Respondent contends, misconceived and the application to strike out that claim will be dealt with at the start of the hearing, as set out in the Tribunal letter dated 9th October 2018.” 5. The Claimant did not in fact ever apply for a stay in the proceedings in respect of the “sleepover” payments. Case: 1806280/2017 3 6. In any event I found as a fact that he was not owed any further potential sums for sleep-in hours worked at the national minimum wage. The time sheets filled in by the Claimant himself record what parts of the 10 hour sleepover shifts were in fact already claimed for and remunerated at the contractual hourly rate. It is only the remaining time that is not already paid for where the sleepover allowance alone represents the remuneration. The Respondent has calculated , based upon these timesheets, that an additional 96 hours need to be accounted for by increasing the pay to reflect the minimum wage: I accepted that evidence. 7. I also found as a fact that there was no concluded agreement that the Claimant’s hourly rate would go up by 50 pence per hour to £7.70 per hour after the end of his probationary period. I did not accept that the Claimant was ever told by his manager that he would actually receive such an increase and I accepted the Respondent’s evidence that she would have had no actual authority to agree a pay rise outside of the parameters set by the HR department. The Claimant’s evidence was in any case somewhat vague: he said only that “it was my understanding that I would get this pay rise after 6 months”. The clear documentary evidence in the Recruitment Pack issued at the commencement of employment was that after successful completion of the probation period pay would rise to £7.50 per hour. At the most there may have been a statement by his manager that if he in fact passed his probation (and it not accepted by the Respondent that he had in fact done so, given the concerns about his performance and behaviour at this time) he could expect a pay rise subject to HR approval and in accordance with the standard practice. Even if the figure of £7.70 per hour had erroneously been mentioned (and I found on balance that it was not) this conversation was not intended to be and was not a contractually binding agreement. The Claimant has not therefore proved an entitlement to more than the sum which has already been paid to him as a gratuity to take his pay up to £7.50 per hour. 8. The findings and therefore the reasons for considering awarding costs are as set out in paragraphs 2 to 4 of the Judgment. 9. I also separately considered whether I should exercise my discretion to award costs and I found that it would be unconscionable for the Claimant not to have to pay costs in these circumstances where he had put the Respondent to the wholly unnecessary expense of attending this hearing. 10. The Respondent claims the cost only of counsel’s attendance at the hearing and not for any other preparation. £850.00 is therefore the amount by which the Respondent is in fact out of pocket as a result of the Claimant’s unreasonable conduct of these proceedings and there is no reason to seek to go behind that figure. 11. I took into account the fact that the Claimant has been and is currently in work, with an agency working for Phoenix Textiles on a full 37 hours per week. I also took into account the Claimant’s ability to pay to the extent that I was able to defer the payment for some 2 ½ months to allow time to organise his finances. EMPLOYMENT JUDGE LANCASTER Case: 1806280/2017 4 DATE 1st March 2019 JUDGMENT SENT TO THE PARTIES ON …………………….....………………………. AND ENTERED IN THE REGISTER ……………………….....……………………. FOR SECRETARY OF THE TRIBUNALS Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunaldecisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.