Mr S Putman v Onriver (UK) Ltd and Mr Z Cheng: 2201569/2021
| Jurisdiction | England & Wales |
| Judgment Date | 26 October 2022 |
| Date | 26 October 2022 |
| Citation | 2201569/2021 |
| Court | Employment Tribunal |
| Published date | 02 November 2022 |
| Subject Matter | Working Time Regulations |
Case Number: 2201569/2021
EMPLOYMENT TRIBUNALS Claimant
Mr S Putman
Respondents
v (1) Onriver (UK) Limited (2) Mr Zhengmao Cheng
Heard at: London Central
On: 05, 06, 07 & 08 July 2022
Before: Employment Judge B Beyzade Ms Z Darmas, Tribunal Member Mr D Shaw, Tribunal Member Representation
For the Claimant
Mr D. Wilson, Lay Representative For the Respondents: Mr Z. Cheng, Director 1st respondent/2nd respondent
JUDGMENT
The unanimous judgment of the Tribunal is:
1.
The complaint of unauthorised deduction from wages against the first respondent in respect of the claimant’s arrears of pay relating to the month of December 2020 is well founded and succeeds. The remainder of the claimant’s claim of unauthorised deduction from wages (pay arrears and bonus) is dismissed.
2.
The complaint of unauthorised deduction from wages against the first respondent in respect of holiday pay between 1 April 2021 and 31 May
1
Case Number: 2201569/2021 2021 is well founded and succeeds. The remainder of the claimant’s claim of unauthorised deduction from wages (holiday pay) is dismissed.
3.
The complaint of failure to provide pay statements in respect of 1 January 2021 to 31 May 2021 made against the first respondent pursuant to sections 8 and 11(1) of the Employment Rights Act 1996 is well founded and it succeeds.
4.
The complaint of failure to provide an initial statement of employment particulars and statement of change made against the first respondent pursuant to sections 1 and 4 of the Employment Rights Act 1996 and section 38 of the Employment Act 2002 is well founded and it succeeds.
5.
A remedy hearing shall take place at 10.00am on 28 October 2022 which is listed for one day by Cloud Video Platform before Employment Judge Beyzade, Ms Darmas and Mr Shaw to consider the sums of money to be awarded to the claimant in respect of his successful claims (as set out above).
6.
The complaint of direct disability discrimination contrary to section 13 of the Equality Act 2010 is dismissed as it is not well founded. This means that the respondents did not subject the claimant to discrimination because of his disability.
7.
The complaint of harassment related to disability contrary to section 26 of the Equality Act 2010 is dismissed as it is not well founded. This means that the respondents did not subject the claimant to harassment related to his disability.
8.
The first respondent’s counterclaim is dismissed.
2
Case Number: 2201569/2021 REASONS
Introduction
1.
The claimant presented a complaint of unlawful deduction from wages (arrears of pay, bonus and holiday pay), failure to provide statement of employment particulars and statement of change, failure to provide itemised pay statements, direct disability discrimination and harassment related to disability which the respondents denied.
2.
In their ET3 Form, the respondents also indicated that they were making a counterclaim for repayment of monies advanced to the claimant by the first respondent by way of a number of alleged loans which the claimant denied.
3.
A final hearing was held on 5, 6, 7 and 8 July 2022. This was a hearing held by Cloud Video Platform (“CVP”) video hearing pursuant to Rule 46 of Schedule 1 of the Employment Tribunal Constitution and Rules of Procedure Regulations 2013 (“ET Rules”). We were satisfied that the parties were content to proceed with a CVP hearing, that it was just and equitable in all the circumstances, and that the participants in hearing were able to see and hear the proceedings.
4.
The parties prepared and filed documents in advance of the hearing consisting of the claimant’s chronology, claimant’s contract of employment (signed and dated on 10 February 2016),
Schedule 1 NEST pension
contribution
discrimination
detail,
Schedule
2
claimant
statement,
Schedule 3 claimant harassment statement, Schedule 4 schedule of text messages, Schedule 5 summary of hospitalisations and cardiologist letter,
and Schedule 6 grievance and resignation letters. We also had before us a copy of the Tribunal file which included a copy of the ET1 Form, ET3 Form, claimant’s Schedule of Loss, and the Case Management Orders dated 07 March 2022.
3
Case Number: 2201569/2021 5.
On the second day of the hearing both parties sent by email copies of various documents including the claimant’s HSBC bank statements from 17 April 2019 to 27 June 2021, claimant’s payslips in relation to 2019,
2020 and January to May 2021, and P60s for the years 2020 and 2021.
The claimant also supplied a schedule setting out his payslip and bank statement analysis (2019 and 2020) at the same time. Neither party objected to these documents being adduced as part of the evidence in the case. We gave permission for both parties to rely on those documents. We determined that this was in accordance with the overriding objective (Rule 2 of the ET Rules) and that the parties could deal with any matters arising from those documents fairly and justly in evidence and submissions (neither party objected to this approach). The claimant’s representative sent a number of comments by email to the Tribunal on the documents and the Tribunal advised that those comments should be raised during the parties’ submissions at the conclusion of the hearing.
6.
At the outset of the hearing the parties were advised that the Tribunal would investigate and record the following issues as falling to be determined, both parties being in agreement with these:
(i)
7.
[Please see the agreed issues at Annex 1 below – this is taken from pages 9-13 of the Case Management Orders dated 07 March 2022].
The claimant gave evidence at the hearing on his own behalf and Mr Z Cheng, Director of the first respondent (and who is also the second respondent) gave evidence on behalf of the respondents.
8.
The claimant was represented by Mr Wilson, a lay representative and Mr Cheng represented both respondents. Although the respondents’ solicitor ceased acting about a week before the final hearing, the Clerk to the Tribunal under our direction contacted Mr Cheng who eventually logged into the hearing and told us that he was unaware that his solicitor ceased acting and he had not been checking his emails. Upon his request, we provided him with a brief adjournment to speak to his solicitor. We confirmed with him thereafter that he was in a position to proceed and to 4
Case Number: 2201569/2021 represent the respondents in respect of this claim. He confirmed that he did not wish to make any applications, nor on being asked (if he required a Mandarin interpreter) did he request an interpreter to be provided by the Tribunal. Mr Cheng confirmed that he was happy to proceed with the hearing and to represent both respondents.
9.
Both parties made oral closing submissions.
Findings of Fact 10.
On the documents and oral evidence presented the Tribunal makes the following essential findings of fact restricted to those necessary to determine the list of issues -
11.
The claimant was employed by the first respondent from 01 February 2016.
Contract of employment 12.
The claimant signed a contract of employment on 10 February 2016 which described his role as Sales Advisor. His normal working hours were stipulated as 30 hours per week, his salary as £15,000 gross per annum (no overtime was payable), and holiday entitlement was 25 days plus bank holidays in each holiday year which ran from 1 April to 31 March (any holiday not taken by 31 March may not be carried forward without written permission).
13.
The employment contract also provides that if an employee were unable to attend work for any reason he must inform Mr Cheng by 09.00am on the first day of absence preferably by telephone and the failure to do so may result in sickness pay not being paid. There are also certification requirements (self-certification for 7 days and thereafter a fit note is required) and subject to complying with these requirements and being off sick for four days or more, an employee is entitled to Statutory Sick Pay.
14.
Clause 5.4 of the claimant’s employment contract provided as follows:
5
Case Number: 2201569/2021 “Under the Employment Relations Act, 1996, you authorise the Company to deduct from your salary, any overpayments or monies owing to the Company,
including,
without
limitation,
any
overpayment
of
salary,
professional
subscriptions and any advances or loans made to you by the Company. In the event of such monies being due to the Company upon the termination of your employment, and if your final salary is insufficient to allow for the whole of any such deduction, you will be required to repay the outstanding amount due to the Company within one month of the date of the termination of your employment.”
15.
Claimant’s duties The claimant’s duties included estates management, looking after the first respondent’s assets, and overseeing the first respondent’s workers. The claimant would be going around making sure everything was in order,
especially for health and safety purposes, and that builders were carrying out their tasks normally.
16.
He was required to work at the first respondent’s offices at Suite 607,
Britannia House, 11 Glenthorne Road, Hammersmith, London, W6 0LH or such other places as the first respondent may require.
17.
The claimant also carried out additional duties including supervising Mr Cheng’s personal cleaner in his house on Wednesdays, driving Mr Cheng to and from the airport when he travelled overseas and driving Mr Cheng to various places as required.
Claimant’s remuneration
18.
The claimant was paid £15,000.00 gross per annum and £6000.00 towards his season ticket in respect of train travel from his home in Kent to the first respondent’s office which was located in Hammersmith. He initially worked part time hours although his working hours were later increased to 40 hours per week. The claimant was paid on a monthly basis.
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Case Number: 2201569/2021
19.
Bonus payment - 2017 In January 2017 the claimant was paid into his Lloyds Bank account the sum of...
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