Employment Tribunals

Case No:1307841/2022 10.2 Judgment - rule 61 February 2018 EMPLOYMENT TRIBUNALS Claimant: Mr Paul Wilkins Respondent: JAVA Art Limited Heard at: West Midlands ET (by CVP) On: 3 November 2023 Before: Employment Judge Chivers Representation Claimant: Mr Sam Roxborough (Counsel) Respondent: Mr Nick Turner (Director of Respondent) JUDGMENT 1. The claimant’s complaint of unauthorised deductions from the pay contrary to Part II Employment Rights Act 1996 is well-founded and succeeds. The respondent made an unauthorised deduction from the claimant’s pay of £532. The respondent is ordered to pay the claimant the gross sum of £532 deducted from pay. 2. The claimant’s complaint of unpaid holiday pay is well founded and succeeds. The respondent is ordered to pay the claimant the gross sum of £84. 3. The respondent failed in its duty to provide the claimant with a written statement of the main terms of employment complying with section 1 Employment Rights Act 1996. Pursuant to section 38 of the Employment Act 2002 the respondent is ordered to pay the claimant the sum of £690 being two weeks’ gross pay. Employment Judge Chivers Date: 3 November 2023 Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or 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. Case No: 1307841/2022 10.8 Reasons – rule 62(3) March 2017 EMPLOYMENT TRIBUNALS Claimant: Mr Paul Wilkins Respondent: JAVA Art Limited Heard at: Midlands West Employment Tribunal (by CVP) On: 3 November 2023 Before: Employment Judge Chivers Representation Claimant: Mr Sam Roxborough (Counsel) Respondent: Mr Nick Turner, Director JUDGMENT having been sent to the parties on 7 November 2023 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided: REASONS 1. Following a Case Management Preliminary Hearing on 9 June 2023 the parties agreed that there were 3 claims being pursued – 1.1 Unpaid wages, 1.2 Failure to pay holiday pay; and 1.3 Failure to provide a written statement of terms of conditions. 2. The Orders issued following the Case Management Preliminary Hearing recorded that the respondent had sent to the claimant copies of all documents relevant to the issue and the claimant was then required (by 30 June 2023) to send to the respondent copies of any other documents relevant to the case. 3. As part of the proceedings at this hearing, I reviewed a bundle of documents of 155 pages. Witness statements were received from the Claimant and from Nick Turner, a Director of the Respondent. 4. The Respondent also produced a further statement – from Mr R Lucas dated 28 September 2023. Mr Lucas was not in attendance at the hearing. His statement is marked “To whomever it may concern”. There is no statement of truth contained in the statement and the purposes for which the statement has been put together are not clear. In any event, the statement does not comment on the contentious issues in dispute in the case. For these reasons, I have disregarded Mr Lucas’ statement. 5. I heard evidence from the Claimant and Mr Turner. Case No: 1307841/2022 10.8 Reasons – rule 62(3) March 2017 ISSUES 6. At the outset of the hearing, I discussed with the parties the issues in dispute and the parties agreed they remained as set out in the Preliminary Hearing Case Management Discussion of 9 June 2023. 7. In terms of the unpaid wages, the claimant is claiming the sum of £532. This is made up of the £690 wages he says he was owed for the work the claimant carried out for the respondent from 9 May to 18 May minus the sums he has already received. The respondent says no sums are owing. 8. In terms of the holiday pay, the parties have agreed the claimant accrued holiday pay during the time he worked for the respondent and further agreed the sum of £84 is payable. 9. In terms of the written statement of particulars, the claimant is claiming £1380 - being 4 weeks’ pay (based on £345 a week). The respondent accepts that a written statement of particulars was not provided to the claimant but considers there to be mitigating circumstances for this failure. FINDINGS OF FACT 10. I decided all the findings on the balance of probability, having considered all the evidence given by the witnesses during the hearing, together with documents referred to by them. Any failure to mention any specific part of the evidence should not be taken as an indication that I failed to consider it. I have only made those findings of fact necessary to determine the issues. It has not been necessary to determine every fact in dispute where it is not relevant to the issues. 11. The claimant responded to a Facebook post published on 8 May 2022 where the respondent requested help to unload a container. The claimant already had a role with the Royal Mail when he responded to the post. 12. The claimant undertook work for the respondent on 9 May 2022. Mr Turner requested that the claimant provide an invoice for this work but the claimant confirmed in a text message that he was not registered as self-employed and so would not be able to provide an invoice. The respondent paid the claimant the sum of £78 for the work the claimant had done on 9 May by bank transfer and the monies arrived in the claimant’s account on 9 May. 13. Mr Turner and the claimant exchanged texts on 9 May with a view of the claimant undertaking further work for the respondent and the claimant worked again for the respondent on 10 May. 14. The respondent’s accountant handles payroll arrangements for the respondent. Having spoken to his accountant on 10 May, Mr Turner suggested that the claimant be engaged as a casual employee. Mr Turner’s accountant forwarded a HMRC Starter Checklist for these purposes to Mr Turner with the intention that the claimant be asked to fill the form in and the claimant could then be set up on the respondent’s payroll. This HMRC Starter Checklist was never sent to the claimant whilst he was employed by the respondent. 15. After working for the respondent on 10 May, the claimant worked for the respondent again in the period 11 May - 18 May. He was not provided with a statement of main terms and conditions at the start of his employment or subsequently. The respondent was not aware of the existence of this obligation. 16. Employees of the respondent are paid monthly. The respondent does not ordinarily pay staff cash advances. The respondent uses an accountant for payroll purposes. Payroll details would be provided by the respondent to the accountant prior to the end of the month and payment of salaries would then be made to employees at month end. 17. On Friday 13 May, Mr Turner says that he gave the claimant a cash advance of £312 for the 26 hours the claimant had worked that week. By this stage, the claimant in a text of 10 May had requested that he be paid an advance for the hours he worked that week. Case No: 1307841/2022 10.8 Reasons – rule 62(3) March 2017 18. On Wednesday 18 May, Mr Turner says he gave the claimant a further payment of £300 for the 25 hours the claimant had worked that week. Mr Turner described both payments (the one on 13 May and the one on 18 May) as cash advances – Mr Turner saying that the intention was that tax and National insurance would then be deducted from wages that the claimant would earn for work the claimant would do later in the month. 19. Ultimately, the last day of the Claimant’s employment with the respondent was to be 18 May 2023. In total the claimant worked 57.5 hours for the respondent in the period 9 May – 18 May. 20. The respondent says that the claimant was paid £690 for the hours he worked. This represents the claimant’s full gross pay for the 57.5 hours he worked at the agreed rate of £12 per hour. 21. The claimant disputes that the entirety of the £690 was paid to him. The claimant’s position is that in addition to the £78 paid for the first day of work (which both parties accept was paid), he was paid 2 further payments totalling £80 – a £30 payment made on 13 May and a £50 payment made on 18 May 2022. So, there is a difference of £532. 22. After the employment has ended, there is an exchange of texts about sums owed during which Mr Turner requested that the claimant provide the claimant’s email details so that he can forward the HMRC Starter Pack to him. In a text of 20 May, Mr Turner states that this is to enable his accountant to calculate the Claimant’s PAYE and holiday entitlement. There is then a text of 20 May in which the claimant states that the respondent did not pay “my tax and you haven’t given me any holiday pay”. 23. On 31 May 2022, the claimant contacted the respondent by email in a document headed ‘Grievance Letter”. This email refers to being owed holiday pay and refers to a failure to provide written particulars and makes other assertions. It states that it is written “in an effort to resolve the issues” the claimant had whilst he worked for the respondent. 24. I find that the respondent paid the claimant the sum of £30 on 13 May and £50 on 18 May 2022. These payments were made by the respondent in response to the claimant’s request to be paid wages in advance (as opposed to at month end when wages were to be paid). The respondent did not pay the claimant his full wages in response to this request but instead paid the claimant these smaller sums to tide him over. The respondent paid these sums to the claimant in cash. 25. I find that the claimant did not receive full wages for the hours he worked for the respondent. In making this assessment, I have had regard to the fact that other than the witness statement of Mr Turner, there is no evidence that payments of £312 on 13 May or £300 on 18 May were made. These are significant sums – far higher than the £78 sum which was paid by the respondent to the claimant for the work the claimant did on 9 May (for which there is documentary evidence). The payments did not go through payroll. There was no bank transfer of these sums. There is no payslip or anything akin to a payslip evidencing them. There is no receipt for them from the claimant. There is no documentation or evidence from the respondent’s accountant who is responsible for all payroll matters. 26. I have had regard to the content of the text from the claimant of 20 May and email of 31 May. The text of 20 May was sent 11 days prior to the end of the month. At that point – given the respondent paid wages at month end – it was not clear that there had been a non-payment of wages. By 31 May, the wages had still not materialised, but the claimant does not refer to this in his email. He raises various issues but makes it clear that the issues he has are not limited to what is stated in his email. The email is stated to be an attempt to resolve matters between the claimant and the respondent. My assessment is that the absence of a reference to non-payment of wages in both the text of 20 May and the email of 31 May is not confirmation that wages have been paid. 27. At the point of termination, the claimant had not taken any holiday and did not receive any payment for accrued but untaken holiday. Case No: 1307841/2022 10.8 Reasons – rule 62(3) March 2017 LAW 28. Section 13 of the Employment Rights Act (“ERA”) provides that a worker has the right not to have their employer make an unauthorised deduction from their wages. Under section 27 ERA wages are defined as “any sums payable to the worker in connection with his employment” 29. Under the Working Time Regulations 1998 (“WTR”) workers have a right to a minimum of 5.6 weeks paid annual leave. This is made up of the right under the Working Time Directive to a minimum of four weeks’ annual leave each year (regulation 13 WTR) and the right to an additional 1.6 weeks’ annual leave each year under regulation 13A WTR. During the first 12 months of employment, the amount of regulation 13 WTR and 13A WTR leave entitlement that the worker can take at any given time is governed by Regulation 15A WTR. This provides that leave accrues at the rate of 1/12 of a full year’s entitlement at the beginning of each month. 30. Employers are required to provide employees and workers with a written statement of particulars under section 1(1) ERA. The right to receive a section 1 statement applies to all employees and workers. For those starting work on or after 6 April 2020, there is no minimum service requirement for an employee or worker to be given a section 1 statement. 31. Under section 38 Employment Rights Act 2002 where a Tribunal finds in favour of an employee in a complaint referred to in schedule 5 Employment Rights Act 2002 and finds that the employer has failed to provide the employee with a written statement of employment particulars, the Tribunal must award the employee an additional 2 weeks' pay unless there are exceptional circumstances which would make that unjust or inequitable and may if it considers it just and equitable in all the circumstances order the employer to pay an additional 4 weeks' pay. CONCLUSION 32. In the light of my findings of fact, I find that the claimant did not receive £532 and was not therefore paid wages for the days he worked. His unlawful deduction of wages claim is well founded and succeeds. 33. In terms of holiday pay, the respondent accepted that no holiday pay has been paid to the claimant and the parties have agreed that the sum of £84 is payable. 34. Furthermore, the respondent has also accepted that there was a failure to provide a written statement. The claimant was entitled to receive these particulars from day 1 and there was a clear breach of this. I acknowledge that the respondent is a small business, and the breach arose from being unaware of the existence of this obligation, but this obligation has been in place for some time and I am not of the view that the respondent’s reasons for failure to comply constitute exceptional circumstances which would mean an award of 2 weeks’ pay is unjust or inequitable. I therefore award the claimant an additional sum of 2 weeks’ pay of £690. Employment Judge Chivers 8 December 2023 Case No: 1307841/2022 Judgment – Reconsideration refused – respondent - rule 72 EMPLOYMENT TRIBUNALS Claimant: Mr P Wilkins Respondent: Java Art Limited JUDGMENT ON APPLICATION FOR RECONSIDERTATION The respondent’s application for reconsideration is refused because there is no reasonable prospect of the decision being varied or revoked. REASONS 1. The claimant issued a claim on 20 September 2022 and in a Case Management Preliminary Hearing on 9 June 2022, it was confirmed that the claim was for unpaid wages, failure to pay holiday pay and failure to provide a Statement of Main Terms and Conditions under s1 Employment Rights Act 1996. 2. This case came before the tribunal on 3 November 2023 and the for the reasons I gave orally at the conclusion of the hearing, I found “The claimant’s complaint of unauthorised deductions from the pay contrary to Part II Employment Rights Act 1996 is well-founded and succeeds. The respondent made an unauthorised deduction from the claimant’s pay of £532. The respondent is ordered to pay the claimant the gross sum of £532 deducted from pay. The claimant’s complaint of unpaid holiday pay is well founded and succeeds. The respondent is ordered to pay the claimant the gross sum of £84. The respondent failed in its duty to provide the claimant with a written statement of the main terms of employment complying with section 1 Employment Rights Act 1996. Pursuant to section 38 of the Employment Act 2002 the respondent is ordered to pay the claimant the sum of £690 being two weeks’ gross pay. 3. The respondent requested written reasons and these were provided on 8 December 2023. In an email dated 22 December 2023, the respondent requested a reconsideration of the decision. Law 4. Rule 70 of schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides an Employment Tribunal Case No: 1307841/2022 Judgment – Reconsideration refused – respondent - rule 72 with a general power to reconsider any judgment where it is necessary in the interests of justice to do so. This power can be exercised either on the Tribunal’s own initiative or on the application of a party. Rules 71 to 73 set out the procedure by which the power is to be exercised. 5. Rule 70 provides a single ground for reconsideration. That ground is where it is necessary to do so in the interests of justice. This does not mean that where a litigant is unsuccessful, they are automatically entitled to reconsideration. Instead, a Tribunal dealing with the question of reconsideration must seek to give effect to the overriding objective to deal with cases fairly and justly and the Tribunal should be guided by the common law principles of natural justice and fairness. On reconsideration, the decision may be confirmed, varied or revoked. 6. Rule 71 provides that an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. 7. The process by which the Tribunal considers an application for reconsideration is set out in Rule 72. Where a Judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application shall be refused. Otherwise, the Tribunal shall send a notice to the parties setting out a time limit for any responses to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. 8. Rule 71 and 72 give the Tribunal a broad discretion to determine whether reconsideration of a decision is appropriate. Guidance for Tribunals on how to approach applications for reconsideration was given by Silmer P in the case of Liddington v 2Gether NHS Foundation Trust UKEAT/0002/16/DA. “34. [....] a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite of the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration. 35. Where [...] a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.” 9. The claimant’s application was received within the relevant time limits. I therefore consider it under Rule 72. Case No: 1307841/2022 Judgment – Reconsideration refused – respondent - rule 72 10. In terms of new evidence, the Employment Appeal Tribunal confirmed in Outasight VB Ltd v Brown UKEAT/0253/14 that the test laid down in Ladd v Marshall (1954) 3 All ER 745 applies. This test has three limbs. It must be shown: • that the evidence could not have been obtained with reasonable diligence for use at the original hearing; • that it is relevant and would probably have had an important influence on the hearing; and • it is apparently credible. 11. Notwithstanding this, there has been an acknowledgement at the Employment Appeal Tribunal (including in the Outasight VB case itself) that there might be cases where the interests of justice permit fresh evidence to be adduced notwithstanding that these principles were not strictly met. Conclusion 12. The substantive element of the respondent’s application relates to 2 bank statements (“the Bank Statements”) and the respondent asks the Tribunal to consider this “further evidence.” The Bank Statements are not from a bank account in the name of the respondent but from a bank account in the name of “Nigel Nicholas Mark Turner and Yuanita Hikmahsari Turner” and cover the periods 17 April – 16 May 2022 and 17 May – 16 June 2022. The statements show deductions from ATMs of £250 on 13 May 2022 and 18 May 2022. 13. In the claim form, which was received by the Tribunal on 20 September 2022, the claimant refers to “I .... have not been paid money I am owed despite requesting this.” 14. To the extent that there was any ambiguity as to what the claimant was claiming, this was clarified in the Case Management Preliminary Hearing on 9 June 2023 (“PH”). The contentious issues were clear at that stage – this was some 5 months prior to the full hearing. 15. In paragraph 8 of the Record of a Preliminary Hearing, the respondent expressly confirms that all documents relevant to issues had been sent to the claimant. Even if this was not the case – and additional documents emerged subsequently – the respondent still had sufficient time prior to the full hearing to disclose such documents. This would have included any documents which may have emerged when Mr Turner was preparing his witness statement (which was dated 9 October 2023). 16. Ultimately, when the case came to a full hearing, there was a bundle of 155 pages and 3 witness statements. The bundle included a bank statement from the claimant which confirmed receipt of a payment (from a “Java Art” bank account rather than the bank referred to in the Bank Statements) that a payment of £78 had been paid by the respondent to the claimant on 9 May. Case No: 1307841/2022 Judgment – Reconsideration refused – respondent - rule 72 17. The Bank Statements are not dated but were addressed to Mr Turner. Whilst acknowledging the fact that the respondent was not represented, given the period to which the Bank Statements relate and the contentious issues in the case, there is no reason why the respondent could not have obtained the Bank Statements with reasonable diligence and presented them to the Tribunal for consideration at the full hearing. The respondent did not do so. I am satisfied however that the respondent had every opportunity to present these documents to the Tribunal at or before the hearing itself. 18. In any event, I consider that the Bank Statements would not have changed the decision of the Tribunal even if these documents had been before it. The Bank Statements provide that a sum of £250 was taken out of a bank account (not in the name of the respondent) on 13 May and 18 May. Unlike the payment of £78 made from the respondent’s bank account on 9 May 2022 (referred to above), there remains no evidence that the respondent made the subsequent (larger) payments to the claimant. This was dealt with in paragraph 25 of the Written Reasons. 19. In terms of the other grounds raised for reconsideration, these amount to the respondent disagreeing with the findings of fact made by the tribunal at the hearing. These issues have substantively been ventilated at the hearing and it is recognised and acknowledged that the respondent strongly disagrees with the findings of the Tribunal in this respect. However, the respondent’s comments on the claimant’s text of 20 May 2022 were fully considered and evaluated carefully alongside the other evidence available and all the circumstances of the case. The Tribunal had regard to the timing of the text, the fact that the claimant was unrepresented when it was sent, the entirety of the exchanges that the claimant had with Mr Turner and the fact that by 20 May 2022 the claimant had received some monies from the respondent in respect of which the respondent had not paid tax/national insurance or provided the claimant with holiday pay. 20. The reconsideration application focuses on the finding in respect of the unauthorised deductions as opposed to the findings in respect of unpaid holiday and failure to provide a statement under section 1 Employment Rights Act 1996. For completeness, however, there is no power to divert sums awarded to the claimant under s38 Employment Act 2002 for a failure to provide a claimant with a written statement of main terms of employment under section 1 Employment Rights Act 1996 to the Tribunal. 21. Having carefully considered the respondent’s application and bearing in mind the importance of finality in litigation and the interests of both parties, I am not satisfied that there is any reasonable prospect of the Judgment or any part of it being varied or revoked. The application for reconsideration is therefore refused. Employment Judge Chivers 25 February 2024