Miss K Kilday and Mr J Bates v JHM Building Services Ltd: 2601307/2021 and 2601310/2021
| Jurisdiction | England & Wales |
| Judgment Date | 26 January 2023 |
| Citation | 2601307/2021 and 2601310/2021 |
| Date | 26 January 2023 |
| Court | Employment Tribunal |
| Published date | 08 February 2023 |
| Subject Matter | Transfer of Undertakings |
Case Number: 2601307/2021 & 2601310/2021
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EMPLOYMENT TRIBUNALS
Claimants: Respondent:
(1) Miss K Kilday v JHM Building Services Ltd
(2) Mr J Bates
Heard at: Nottingham (via CVP) On: 18, 19 & 20 July 2022
Before: Employment Judge Fredericks
Appearances
For the claimant: Mr N Arora (Counsel)
For the respondent: Mr T Hussain (Litigation Consultant)
RESERVED JUDGMENT
The first claimant – Miss Kilday
1. The first claimant was engaged by the respondent as a worker from 6 March 2019
until she became an employee on 3 July 2019. She was engaged for 2.5 days per
week (eight hour days).
2. The respondent made an unlawful deduction from the first claimant’s wages during
the time that the first claimant was a ‘worker’, between 6 March 2019 and 30 June
2019. The first claimant was not paid for the time she was a ‘worker’ of the
respondent, but is only able to claim from 5 June 2019 by operation of 23(4A)
Employment Rights Act 1996, which means that she is entitled to be paid the
claimed minimum wage hours in the sum of £656.80.
3. On 1 July 2019, the first claimant began working 40 hours per week, first as a
worker and then as an employee. The respondent failed to pay the first claimant
the National Minimum Wage throughout her employment as an ‘employee’ of the
respondent, which contributes to a continuing and unbroken course of unlawful
deductions from wages between 6 March 2019 and 15 February 2021. The first
claimant worked 40 hours per week throughout her employment. It is found that:
Case Number: 2601307/2021 & 2601310/2021
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3.1. The first claimant was paid £240.38 per week through PAYE from 3 July 2019
until 31 December 2020, leading to shortfalls of –
3.1.1. £88.02 £86.89 per week until 31 March 2020 (39 weeks), meaning a total
shortfall of £3,431.65 for the period; and
3.1.2. £108.42 per week from 1 April 2020 to 31 December 2020 (40 weeks),
meaning a total shortfall of £4,336.80 for the period.
3.2. The first claimant was not paid at all between 1 January 2021 and her
effective date of termination on 15 February 2021, which amounted to
additional unlawful deductions from wages due at 40 hours per week at
national minimum wage and leads to an award of £2,232.32.
4. Consequently, the respondent is ordered to pay the claimant the sum of
£10,000.77 in respect of unlawful deduction from wages during her period as an
‘employee’, amounts representing less than the National Minimum Wage.
5. The first claimant is owed payments in respect of accrued and untaken holiday,
found to roll forward year on year, in the total amount of 30 days over the course of
her engagement by the respondent. These days are due at the relevant minimum
wage rates at eight hours per day, meaning that the respondent must pay the first
claimant the sum of £2,138.40 in respect of holiday earned but not taken or paid
during her time as a worker or employee of the respondent.
6. The respondent did not provide the first claimant with any particulars of her
employment and in the circumstances it is considered just and equitable to order
the respondent to pay her the higher amount of four week’s pay under s38
Employment Act 2002, which is the sum of £961.52.
7. The GRAND TOTAL gross amount that the respondent must pay to the first
claimant in respect of all of her claims is £13,757.49.
The second claimant – Mr Bates
8. The second claimant was engaged by the respondent as a worker from 1 April
2019 until he became an employee on 3 July 2019. He worked 5 days per week
(also 8 hour days).
9. The respondent made an unlawful deduction from the second claimant’s wages
during the time that the second claimant was a ‘worker’, between 1 April 2019 and
30 June 2019. The second claimant was not paid for the time he was a ‘worker’ of
the respondent, but is only able to claim from 5 June 2019 by operation of 23(4A)
Employment Rights Act 1996, which means that he is entitled to be paid the
claimed minimum wage hours for this period in the sum of £1,183.68.
10. On 3 July 2019, the claimant became an employee of the respondent working 40
hours per week. The respondent failed to pay the second claimant the National
Minimum Wage throughout his employment as an ‘employee’ of the respondent,
which amounts to a continuing and unbroken course of unlawful deductions from
wages between 1 July 2019 and 15 February 2021. The second claimant worked
40 hours per week throughout his employment. It is found that:
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