Blasiak-Wankowicz v Emma Beggs T/A Boutique and Sp... [2014] NIIT 1320

THE INDUSTRIAL TRIBUNALS

CASE REF: 1320/14

CLAIMANT: Katarzyna Blasiak-Wankowicz

RESPONDENT: Emma Beggs T/A Beauty Boutique and Spa

DECISION

The claimant has suffered unauthorised deductions from wages and a loss as a result of the breach of contract by the respondent in failing to pay the claimant wages and holiday pay due in the sum of £832.92. The respondent has failed to provide the claimant with itemised pay statements throughout her employment and the tribunal determines that the particulars set out herein ought to have been included to comply with Article 40 of the Employment Rights (Northern Ireland) Order 1996. When proceedings were commenced the respondent was in breach of her duty to provide the claimant with a written statement of employment particulars and shall pay the claimant £201.92 in respect thereof. The respondent shall pay the claimant in total the sum of £1,034.84.

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Bell

Appearances:

The claimant appeared in person.

The respondent did not appear and was not represented.

1. The claimant in her claim complained that she had not received itemised pay statements, a written statement of employment particulars, arrears of pay and holiday pay.

2. No response was presented by the respondent.

3. The correct title of the respondent based on the evidence presented appears to be Emma Beggs T/A Beauty Boutique and Spa and is accordingly amended from ‘1. Beauty Boutique and Spa 2. Emma Beggs’ to ‘Emma Beggs T/A Beauty Boutique and Spa’.

ISSUES

4. The issues before the tribunal were:

- What was the claimant’s status?

- Did the respondent fail to provide the claimant with itemised pay statements and if so what particulars ought to have been included therein to comply with Article 40 of the Employment Rights (Northern Ireland) Order 1996?

- Has the claimant suffered an unauthorised deduction from wages and or breach of contract by the respondent in respect of the payment of wages and holiday pay? If so, what loss has the claimant suffered?

- When proceedings were commenced was the respondent in breach of the duty to provide the claimant with a written statement of employment particulars?

EVIDENCE

5. The tribunal considered the claim, documentation from the claimant and heard oral evidence from Mr Martin Thompson and from the claimant.

FINDINGS OF FACT

Based on the claimants undisputed evidence the tribunal on balance finds as follows:

6. The claimant was employed by the respondent as a part time nail technician at the respondent’s beauty boutique from 27 March 2014 until 17 July 2014. The claimant was offered the job after responding to a job advert placed by the respondent on Facebook and attending an interview with the respondent. The claimant was not introduced or supplied to the respondent by an Employment Agency nor had any dealings with any employment agency in respect of work done by her for the respondent.

7. The respondent sublet the business premises where the claimant was employed from Mr Martin Thompson. The claimant’s employment came to an end after Mr Thompson took back possession of the premises on 17 July 2014.

8. Agreed terms of the claimant’s employment were that she would work 16 hours per week over three days made up of four hours on two week days and eight hours on a Saturday for which she would be paid £6.31 gross per hour. The claimant was informed that she would receive paid holidays but her contractual entitlement or dates of the holiday year were not specified.

9. The claimant was initially told that she would be paid weekly but when she sought payment at the end of her first week she was told that payment would instead be made monthly which she accepted. The claimant worked for 76 hours for the respondent between 27 March and 27 April 2014 and 16 hours between 28 April 2014 and 5 May 2014 but no payment of wages was received despites enquires made by the claimant to the respondent in respect thereof. The claimant thereafter was paid by the respondent £100.96 in cash each Saturday in respect of wages. The claimant took two weeks agreed holidays from work between 5 June and 22 June 2014 but despite requests made by her no payment was received from the respondent for her holiday leave. The claimant worked for 8 hours for the respondent between 14 July and 17 July 2014 but did not did not receive payment of wages from the respondent. No itemised pay statements or written statement of particulars of employment were provided to the claimant by the respondent at any time.

10. The claimant is a basic rate tax payer and had no other income during her employment with the respondent.

11. The claimant presented her claim to the Office of the Tribunals on 22 July 2014.

THE LAW

12. The Working Time Regulations (Northern Ireland) 1998 as amended provide under Regulations 13 and 13A for a worker to have minimum leave in a leave year from 1 April 2008 of 5.6 weeks and in the absence of provisions of a relevant agreement for the worker’s leave year to begin on their start date where it is after 23 November 1998. Regulation 15A provides for accrued annual leave to be rounded-up during the first year only on a month-to-month basis to the next half-day.

13. Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment before an Industrial Tribunal if the claim arises out of or is outstanding on termination of his employment.

14. Article 45 of the Employment Rights (Northern Ireland) Order 1996 provides for a worker’s right not to suffer unauthorised deductions from wages by his employer. A deduction occurs when the employer pays less than the amount due on any given occasion and includes a failure to make any payment.

15. Article 40 of the Employment Rights (Northern Ireland) Order 1996 provides that an employee has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement which shall include particulars of:-

(a) the gross amount of the wages or salary,

(b) the amounts of any variable, and (subject as provided therein) any fixed, deductions from that gross amount and the purposes for which they are made,

(d) where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment.

16. Where an employer does not give an employee a statement required by Article 40 of the 1996 Order the employee may require under Article 43 a reference to be made to the industrial tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the Article concerned.

17. Article 33 of the 1996 Order provides that where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment as provided therein. Under Article 27 of The Employment (Northern Ireland) Order 2003 in proceedings before an industrial tribunal in respect of specified jurisdictions which include unauthorised deductions and payments, and breach of employment contract and termination, if the tribunal makes an award to the employee in respect of the claim, and when the proceedings were begun the employer was in breach of his duty to the employee under Article 33 of the 1996 Order the tribunal shall increase the award by the minimum amount equal to two week’s pay to be paid by the employer to the employee and may, if it considers it just and equitable in all the circumstances, award the higher amount equal to four week’s pay instead. The tribunal’s duty does not apply if there are exceptional circumstances which would make an award or increase unjust or inequitable.

18. The basic tax personal allowance for the 2014/15 tax year is £10,000. National Insurance contribution rates for 2014/15 are rated at no more than zero until weekly earnings are £153.01 or more.

APPLYING THE LAW TO FACTS FOUND

19. Based on the claimant’s undisputed evidence the tribunal is satisfied that the claimant was employed by the respondent and that under oral and implied terms of her contract of employment the claimant was due on termination of her employment outstanding wages payable at the rate of £6.31 gross per hour for 76 hours work done for the respondent between 27 March 2014 and 27 April 2014, 16 hours between 28 April 2014 and 4 May 2014 and 8 hours between 14 July 2014 and 17 July 2014 amounting to £631.00 and two weeks holiday pay of £201.92 for holidays taken in June 2014 (the claimant’s overall pro rata holiday entitlement for the period worked by her being 5.6 weeks X 16/52 weeks = 1.7 weeks, which rounded up under Regulation 15A of the Working Time Regulations is 2 weeks). The claimant since termination of her employment, has not been paid the balance due under her contract of employment for wages and holidays and the tribunal finds that the claimant has suffered an unauthorised deduction from wages and a loss as a result of the breach of contract by the respondent in respect thereof in the sum of £832.92.

20. The tribunal finds that the respondent failed to provide the claimant with itemised pay statements and based upon the claimant being a basic rate tax payer in receipt of income of less that £153.02 per week determines that the following particulars ought to have been included or referred to in a statement so as to comply with the requirements of Article 40 of the 1996 Order:-

26 April 2014

(a) Gross pay £479.56