Employment Tribunal Rejects Unpaid Wages and Holiday Pay Claim

Case No: 3307805/2023 3307802/2023 1

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted] Watford (In person)

On: 19 July 2024

Before: Employment Judge Bansal

Representation:

Claimants: [redacted] Respondent: [redacted] Interpreter: [NAME_4]

JUDGMENT having been given orally at the hearing and a judgment been sent to the parties on 30 August 2024, these written reasons have been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013. Therefore the following reasons are provided.

WRITTEN REASONS Background

1. The claimants are father and son. [NAME_1] is the son and [NAME_1] is the father. Both claimants presented separate Claims Forms (ET1) making identical complaints for unpaid wages and unpaid holiday pay for the period 3 March 2023 to 28 April 2023 in the sum of £4,368.00. The respondent in their response to the claims disputed the claimants were employees maintaining they were self-employed contractors and denied any monies were owed as claimed.

2. A public preliminary hearing was held on 8 March 2024 in relation to the claim for [NAME_1] (Case No. 3307805). This was to determine the employment status of the claimant. This hearing was postponed as the case was not fully prepared for a hearing. At this hearing the claim of [NAME_1] (Case No. 3307802) was consolidated by consent. The claims were listed for a public preliminary hearing on 23 & 24 May 2024 to determine the employments status of the claimants.

3. At the public preliminary hearing, the Tribunal determined that at the material dates the claimants were workers of the respondent pursuant to s230(3) of the Employment Rights Act 1996. Further, a Remedy Hearing was listed for 19 July 2024. A Judgment to this effect was sent to the parties on 30 August 2024.

Case No: 3307805/2023 3307802/2023 2

Remedy Hearing

4. At the Remedy Hearing the claimants attended in person. They had requested an Interpreter, and were assisted by [NAME_5] who attended at the preliminary hearing on 8 March 2024. For the respondent [NAME_6] attended in person.

5. At the start of the hearing the parties were given an opportunity to attempt a negotiated settlement, but no settlement was reached.

6. The claimants provided a two page document, “Calculations for Unpaid Wages and Holiday Entitlement”. This document set out the amount owed for works completed for the period claimed in the sum of £4,812 for each claimant, and holiday pay at £471.61 each. The claimants did not provide a witness statement to explain how the amounts had been calculated. From the explanation given by [NAME_1], the calculation was based on the agreed price for the work carried out at the two properties at Hemel Hempstead. This agreed price was £19,250. This sum was to be shared between 4 individuals who worked on the houses, giving each individual the sum of £4812. The document set out for the period claimed 5 separate payments were received from the respondent in the total sum of £7,700.

7. In terms of the holiday pay, the claim was for 7 days of accrued holiday entitlement (not taken), assessed to be £471.91 for each claimant.

8. [NAME_6] disagreed with the sums claimed or the job price claimed by the claimant. He also disputed the claimants worked throughout the period from March to April 2023 as claimed, as they took days off when they wanted to and did not on site all the time. There were no completed timesheets or other documentary evidence for the period claimed to evidence the days and hours worked by the claimants. Further, he denied there was an agreed contract price with the claimants or the respondent had been paid £19,250 by the contractor as the contractor had not paid any monies as it became insolvent. However, he accepted the claimants have been paid a total sum of £7,700 between them, which meant they had each received £3850.

The Legal Framework

9. I had regard to the Employment Rights Act 1996, which does not set a specific hourly rate for workers but provides a framework for employee rights, and protection for wages. I also had regard to the National Minimum Wage Act 1998, which determines the minimum hourly rate of pay, and the National Living Wage.

10. I noted the National Living Wage for the period April 2022 to 31 March 2023 was £9.50 per hour, and £10.42 from April 2023.

Conclusion

11. These claims were difficult to assess and determine. This was due to the lack of any supporting documentary evidence to show the actual days and hours worked by the claimants and an agreement on the hourly rate of pay.

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12. Firstly in relation to the unpaid wages claim, the Tribunal had to determine whether the claimants were owed any wages for the works carried out in the period claimed. The burden was on the claimants to satisfy the Tribunal that the sums claimed were due and owing. The Tribunal was not satisfied they had done so, for the following reasons. The sums claimed for unpaid wages was £4812. This sum was based on the premise of an agreed contract price either agreed with the respondent or paid to the respondent by the contractor for the 2 houses at Hemel Hempstead. There was no written evidence to support alleged contract price. Also the Tribunal was not provided with any written records of days and hours actually worked by the claimants, and the agreed hourly rate of pay. Without this information and lack of any other supporting evidence, the Tribunal was not able to make a determination in the claimants favour. The Tribunal did not consider it just and fair to make award for unpaid wages based simply on a disputed contract price as claimed by the claimants and which they have inferred has entitled them to the sum claimed. The approach taken by the claimants in pursuing a payment was more akin to a breach of contract claim rather than a claim for unpaid wages, in which case a claim in a different jurisdiction would have been the appropriate forum.

13. In the alternative and to give the claimants some understanding, the Tribunal gave consideration to these claims with reference to the National Minimum and Living Allowance Wage rates, based on the claimants purportedly working an average of 40 hours per week, namely 160 hours in March 2023 and 160 hours in April 2023. The calculations were that the wages payable would have been £3187.20 each. This is based on for March 2023 -160 hours x £9.50 =£1520.00, and for April 2023- £160 x £10.42= £1667.20.

14. With regard to the holiday entitlement, the annual leave for the claimed period amounted to 5 days and not 7 days as claimed. The claimants worked for a period of 8 weeks, and their statutory entitlement for each month was at 2.33 days, which for this period amounted to 4.66 days. Thus rounding the entitlement to 5 days, the calculations were for March 2023-2.5 days x £9.50= £23.75, and for April 2023-2.5days x £10.42= £26.25. Therefore, the total holiday pay would have amounted to £50.00.

15. Therefore, based on these calculations the claimants would have been entitled to be paid the total sum of £3,237.20 each. From this sum, a deduction of £3850 must be made, which the claimants accept they received as payment for work done. Therefore based on these calculations the claimants have been overpaid by the sum of £612.80.

16. For these reasons the Tribunal was not able to award any monies to the claimants as claimed.

17. Employment Judge Bansal apologises to the claimants for the delay in providing these written reasons.

Case No: 3307805/2023 3307802/2023 4

Approved By

Employment Judge Bansal

Date 22 January 2025

JUDGMENT SENT TO THE PARTIES ON

23 January 2025

FOR THE TRIBUNAL OFFICE

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: 3307805/2023 3307802/2023 10.2 Judgment - rule 61

February 2018

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted] Watford (In person)

On: 23 & 24 May 2024

Before: Employment Judge Bansal

Representation: Claimant:

[redacted] Respondent: [redacted]

JUDGMENT

1. At the material time between February 2023 to April 2023 the Claimants were workers of the Respondent pursuant to s230(3) of the Employment Rights Act 1996.

2. The Claimants claims for unlawful deduction from wages and unpaid holiday pay will be determined at the listed Remedy Hearing on 19 July 2024.

_____________________________

Employment Judge Bansal

Date 24 May 2024

JUDGMENT SENT TO THE PARTIES ON

20 June 2024

FOR THE TRIBUNAL OFFICE

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.

Case No: 3307805/2023 3307802/2023 10.2 Judgment - rule 61

February 2018

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted] Watford (In person)

On: 19 July 2024

Before: Employment Judge Bansal

Representation:

JUDGMENT

The Claimants claims for unlawful deduction from wages and unpaid holiday pay is not well founded and are dismissed.

_____________________________

Employment Judge Bansal

Date 19 July 2024

JUDGMENT SENT TO THE PARTIES ON

30 August 2024

FOR THE TRIBUNAL OFFICE

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.