Mrs D Russell v Finance and Credit Corporation Ltd (in administration): 2200914/2018
| Judgment Date | 27 September 2019 |
| Citation | 2200914/2018 |
| Published date | 10 October 2019 |
| Court | Employment Tribunal |
| Subject Matter | Unlawful Deduction from Wages |
Case Number: 2200914/2018
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EMPLOYMENT TRIBUNALS
Claimant
Respondent
Mrs D Russell
- V -
Finance and Credit
Corporation Ltd (in
administration)
Heard at: London Central
On: 10-16 September 2019
Before: Employment Judge Baty
Representation:
For the Claimant:
Mr C Parkin (counsel)
For the Respondents:
Mr A Sendall (counsel)
RESERVED JUDGMENT
1. The claimant’s complaints of unfair dismissal and breach of contract
(notice pay) succeed.
2. The claimant’s complaints of unlawful deduction from wages in
respect of unpaid holiday pay and her unpaid September 2017 salary and
under the Working Time Regulations 1998 in respect of unpaid holiday pay
succeed. An award of £4,684.04 (net), payable by the respondent to the
claimant, is made in respect of these successful complaints.
3. The claimant’s complaint of unlawful deduction from wages in
relation to the “Russells invoices” succeeds.
4. The claimant’s complaint of breach of contract in relation to an
alleged termination payment fails.
5. The tribunal does not have jurisdiction to hear the respondent’s
employer’s contract claim and that claim is struck out. Even if the tribunal
did have jurisdiction to hear it, that claim would have failed.
Case Number: 2200914/2018
- 2 -
REASONS
The Complaints
1. By a claim form presented to the employment tribunal on 19 February
2018, the claimant brought complaints of unfair dismissal, breach of contract
(notice pay), for holiday pay and in respect of three different types of alleged
unpaid payments. The respondent defended the complaints.
2. The response form contained an employer’s contract claim. The claimant
defended this claim.
3. The respondent went into administration with effect from 11 April 2019.
On 23 August 2019, the administrators gave their consent for these proceedings
to continue.
The Issues
4. At the start of the hearing, I spent time with the representatives agreeing
(subject to the paragraphs in this section below the list of issues below) exactly
what the heads of complaint were and the issues in relation to those complaints.
Those agreed issues are set out below. In relation to the various complaints
regarding alleged unpaid payments, it was not wholly clear to me from the claim
form whether these were pleaded as complaints of, for example, unlawful
deduction from wages or breach of contract or both; Mr Parkin clarified this as we
went through the issues and the types of complaint are set out in the headings at
the start of the issues relating to the complaints in question below.
Unfair dismissal
1. Did the respondent dismiss the claimant for a potentially fair reason? The
respondent says that the reason was conduct and/or some other substantial reason
(being a loss of trust and confidence in the claimant).
2. Did the respondent have a genuine and reasonably held belief that the claimant
committed the misconduct, following such investigation as was reasonable?
3. Was the dismissal procedurally fair?
4. Was the decision to dismiss within the reasonable range of responses open to a
reasonable employer?
5. If the dismissal was unfair, should there be any adjustments to compensation
due to contributory conduct of the claimant or under the principles in Polkey v AE
Dayton?
6. Should there be any adjustments to compensation for any unreasonable failure
by the claimant or the respondent to comply with the ACAS Code on Disciplinary and
Grievance Procedures 2015 (the “ACAS Code”)?
Case Number: 2200914/2018
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Notice pay (breach of contract)
7. Has the respondent proved that it was entitled to dismiss the claimant without
notice?
Holiday pay (unlawful deduction from wages, and Working Time Regulations 1998)
8. The amount of holiday pay due to the claimant is agreed to have been £3,028.85
(gross). Was the respondent entitled to deduct that sum from the claimant’s wages?
September 2017 salary (unlawful deduction from wages)
9. The claimant was not paid her September 2017 salary which amounted to
£3,432.69 (gross). Was the respondent entitled to deduct this from her wages?
Termination payment (breach of contract)
10. What were the relevant terms of the claimant’s termination payment? Did the
claimant satisfy the conditions of that arrangement such that a payment was payable to
her? If so, what was the amount of that payment? It is agreed that, if the termination
payment was payable, the amount of that payment should have been £57,723.75 (gross).
Russells Associates invoices for May - September 2017 (unlawful deduction from wages)
11. The claimant claims that sums said to have been due to Russells Associates Ltd
(“Russells”) of £1,637.50 per month for each of the five months from May - September
2017 are payable to her (a total of £8,187.50). Russells invoices were issued for each of
May and June 2017 but no such invoices were issued for any of July, August or
September 2017. Does the claimant have locus to pursue these sums as the invoices in
question are Russells invoices? In other words, if such sums are due, are they due to
Russells or to the claimant?
12. If so, were such sums properly payable to the claimant?
13. Furthermore, as Russells invoices were not issued for the three months from July
- September 2017, is the claimant entitled to be paid in respect of only the two invoices
issued or in respect of payments for each of the five months from May - September 2017.
14. If so, was the respondent entitled to deduct these sums from the claimant’s
wages?
Employer’s contract claim
15. Did the claimant in breach of contract make a payment from the respondent to
the claimant of £15,000 on 16 December 2016?
16. Does the tribunal have jurisdiction to hear this complaint under the terms of the
Employment Tribunals Act 1996 and the Employment Tribunals Extension of Jurisdiction
(England and Wales) Order 1994 (the “1994 Order”)?
5. Although the substance of the issues was agreed at the start of the
hearing, I asked the parties to liaise and try and agree the figures which are set
out at paragraphs 8, 9, 10 and 11 of the issues above. They duly did so and
provided these figures to me at the beginning of the third morning of the hearing.
It was also agreed that the net figure in respect of the holiday pay and
September 2017 salary complaints combined was £4,684.04 and that, if both of
those complaints succeeded, that was the figure which would be payable to the
claimant by the respondent. At this point, the issue set out at issue 13 above
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