IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

Mrs Lynda McDonald

CLAIMANT

 

AND

 

 

Absolute Care Limited

RESPONDENT

 


TRIBUNAL JUDGMENT


 

Reference:                    [2017] TRE166

 

Hearing Date:                23 March 2018

 

 

Before:                                     Advocate Ian Jones, Deputy Chairman

                                                Mrs Sue Cuming and Mr Neal Vautier, Panel Members

 

Appearance:

For the Claimant:           In person

For the Respondent:     Angela Creighton, Director

 

 

JUDGMENT

 

INTRODUCTION

 

1.         On Friday 23rd March the Tribunal sat to hear the claim of Mrs Lynda McDonald (“Mrs McDonald”) against her former employer Absolute Care Limited (“Absolute Care”) represented by its owner / director Mrs Angela Creighton (“Mrs Creighton”).

 

2.         Regrettably the case proved ultimately to be a tale of two friends (Mrs McDonald and Mrs Creighton) who fell out, which fall-out resulted in formal action being taken in the Tribunal. Much of the evidence that was heard on 23rd March was coloured to some not inconsiderable degree by personal animosity on both sides, particularly Mrs Creighton, who in the Tribunal’s view, in some respects, let her company, the Respondent, down very badly in the way Mrs McDonald’s claim was answered.

3.         The die was cast on 14th December 2017, at the case management meeting (the “CMM”) where it became clear, after argument, that there were no less than 11 separate issues / areas of dispute between the parties, including no less than 5 counterclaims (the “Counterclaims”) made by Absolute Care.

 

4.         Mrs Creighton was ordered to provide further particulars of three of the Counterclaims on pain of them being struck-out. Ultimately, and in the view of the Tribunal sensibly, Mrs Creighton chose to withdraw those three counterclaims. One of the Counterclaims involved an allegation that Mrs McDonald had acted in breach of a covenant in restraint of trade, which the Tribunal had no jurisdiction to hear; this Counterclaim was thereby struck-out on 14th December at the CMM.

 

5.         This meant that the Tribunal was tasked with determining 5 separate claims from Mrs McDonald and the one remaining Counterclaim from Absolute Care.

 

6.         Preparations for the final hearing were beset with difficulties, for the most part caused by Absolute Care and Mrs Creighton either failing or refusing to engage properly with Mrs McDonald and the preparation of her case. A particular source of difficulty was disclosure with both parties making allegations that the other was refusing or failing to make disclosure of relevant documents.

 

7.         This culminated in a further CMM, held on 6 March 2018 where both parties were given an opportunity to make specific requests for certain disclosure. Various orders were made and for the most part these orders were followed. 

 

8.         Despite indications at the CMM that Absolute Care would be calling 3 witnesses, in the event, it transpired that only Mrs McDonald and Mrs Creighton gave evidence. This was a source of some consternation for Mrs McDonald as one of the intended witnesses, who ultimately did not give any evidence, was Mrs McDonald’s husband. The Tribunal understood that Mr McDonald was potentially going to be giving evidence which would likely be a source of embarrassment to Mrs McDonald. It was perhaps not surprising that ultimately Absolute Care was not able to call and / or rely upon Mr McDonald to give evidence to undermine his wife’s claim, but the Tribunal was concerned at the way in which Absolute Care / Mrs Creighton managed the situation.

 

9.         In short the Tribunal could not see that the situation had been managed at all, with both the Tribunal and Mrs McDonald, for most of the time not being clear precisely who would (or would not) ultimately be giving evidence for Absolute Care. Whether it was the case or not (and the Tribunal strongly suspects that it was) the impression given was that Mrs Creighton’s intention (or perhaps more accurately ‘threat’) was for Mrs McDonald to be so worried at the prospect of her husband giving evidence that she would elect to withdraw her claim. In the event and as detailed below, although much of the Respondent’s focus was on the issue of Mrs McDonald’s husband giving evidence against his wife, this issue ultimately proved to be nothing more than a distraction and had no bearing at all on the substance of the claim or more importantly the defence put forward by the Respondent.

 

10.        It also transpired, at the commencement of the hearing, that there were a number of documents in the File that were ‘not agreed’. To be fair to both parties, they had been ordered to include in the bundle everything that they believed to be relevant to their respective claims and in the event that there was any dispute in relation to certain material the Tribunal would deal with such dispute at the beginning of the final hearing.

 

11.        After discussion it transpired that there was no substantive dispute as to the documentation, the issue was simply that the Respondent had provided further documentation to be included in the file at a very late stage, which Mrs McDonald had not had an opportunity to review. The Tribunal considered each piece of material and heard from both parties as to its relevance. The parties for the most part agreed as to whether or not such material was in fact relevant or not and having excluded the plainly irrelevant material the Tribunal then moved on to consider the substantive Claims and remaining Counterclaim.

 

THE ISSUES

 

12.      The issues for determination by the Tribunal, which will each be dealt with in turn below, were agreed between the parties and can be summarised as follows:

 

a)                       The  precise terms of the Employment contract (the “Contract”) between Mrs McDonald and the Respondent;

b)                      Whether or not in breach of the Contract the Respondent withheld holiday pay in the amount of £1,538.90 or at all;

 

c)                       Whether or not in breach of the Contract the Respondent failed to pay one month’s wages to Mrs McDonald in the amount of £2,513.13, or at all;

d)                      Whether or not in breach of the Contract the Respondent failed to pay Mrs McDonald an additional £4,921.20 in wages over and above the wages already paid to her;

e)                      Whether or not in breach of the Contract the Respondent failed to pay Mrs McDonald overtime;

f)                         Whether or not Mrs McDonald is entitled to claim from the Respondent the sum of £1,000 in respect of interest accrued on a personal loan, on the basis that if proven, the alleged failures to pay wages as detailed above in 2.1.3 caused her to take out a personal loan which would have otherwise been unnecessary; (the “Claims”) and

g)                      Whether or not Mrs McDonald falsified expense claims in relation to professional training to the prejudice of the Respondent in the sum of £3,390 (the “Counterclaim”).

 

13.      Helpfully the parties agreed a set of ‘agreed facts’ in advance of the hearing. They can be summarised as follows:

 

a)                       Mrs McDonald was paid £580 per week at the commencement of her employment; and

b)                      Mrs McDonald commenced her employment with the Respondent on 1st November 2016 and was an employee until 31st July 2017.

 

EVIDENCE / FINDINGS

 

14.      The Contract / Terms of Employment

 

a)              Although it had been indicated by the Respondent that there was a substantive dispute as to the precise terms of Mrs McDonald’s employment by Absolute Care, it transpired that in reality there was no real dispute at all.

 

b)             The Tribunal was provided with an employment contract which was both undated and unsigned but which Mrs McDonald sought to rely on as evidence of her terms of employment. Mrs McDonald’s position was that this document was her employment contract and represented her agreement with the Respondent.

 

c)              Surprisingly Mrs Creighton did not dispute this. No point was taken vis-à-vis the fact that the document was unsigned and undated. On the contrary Mrs Creighton confirmed in her evidence that this document was an accurate and complete reflection of the agreement between Mrs McDonald and Absolute care vis-à-vis her terms of employment.

 

d)             The dispute, per Mrs Creighton was that Mrs McDonald had allegedly said, or declared, that the Contract was ‘not worth the paper it was written on’. Mrs Creighton’s position was that in circumstances where Mrs McDonald had made such a statement about the Contract, she could not then rely on its terms or seek to have them enforced. Mrs Creighton went on to explain that Mrs McDonald had said that she would produce a new or replacement contract of employment.

 

e)             Mrs Creighton’s evidence and arguments in this regard were at times confused and difficult to follow but her position seemed to be that in circumstances where Mrs McDonald had made the alleged statement and said that she would be producing a new / replacement contract, she could not rely on the terms of the contract she sought to replace.

 

f)                Mrs McDonald was clear in her evidence that she made no such statement. Mrs Creighton confirmed that she had no other evidence, corroborative or otherwise which could assist the Tribunal further on this point. The Tribunal was therefore left with the word of Mrs McDonald against the word of Mrs Creighton. The Tribunal sought to test Mrs Creighton’s evidence and the Respondent’s defence by asking her what she said the terms of Mrs McDonald’s employment in fact were, if she was correct in her contention that the contract relied on by Mrs McDonald had fallen away as a result of her statement and intention to draft new terms. Mrs Creighton conceded that at no point, up until 31st July 2017, did Mrs McDonald cease to be an employee of the Respondent. She also accepted that Mrs McDonald would have had terms of employment during this time. For example she was still entitled to be (and in fact was) paid, notwithstanding her alleged statement.

 

g)             Mrs Creighton had no real answer to this query and both shrugged and smiled in response. The Tribunal asked Mrs Creighton whether or not she thought the position might be that irrespective of whether the parties to the Contract desired to vary or terminate it, if in fact it had not been varied or terminated it would remain in force until any such variation or termination. Mrs Creighton was also again asked, if the Contract did not remain in force until either variation or termination, what she said the terms of Mrs McDonald’s employment were if the Contract had not been varied or terminated but was otherwise somehow not in force. Mrs Creighton was unable to provide any answer or argument in this regard and conceded that her instinct was that the Contract ‘probably’ remained in force and was therefore binding upon the parties until it was either terminated or otherwise varied.

 

h)              Having had the opportunity to assess the demeanour and presentation of each witness the Tribunal found the evidence and position advanced by Mrs Creighton to be difficult to accept. Not only did she concede that the contract produced and relied upon by Mrs McDonald did indeed represent the terms of employment as of 1st November 2016 but she could also offer no compelling evidence that those terms had ever been varied or otherwise superseded. The Tribunal was unanimous in finding in favour of Mrs McDonald on this point; Mrs McDonald proved that the terms of the Contract were those contained in the document produced to the Tribunal.

 

i)                The salient terms of the Contract are as follows:

 

       1. The commencement date of this contract is 1 November 2016.

 

…3. Your working hours will be 40 hours per week paid at the rate of £14.50 for the first 3 months or until client bookings increase. After the 3 month period or increase of client bookings The Company will increase your annual salary to £40,000 per annum, this will be reviewed annually.

 

…8. You will be paid monthly on the last working day of the month in arrears to a bank account of your choice.

 

…9. The Company leave year runs from the 1st January till 31st December. You are entitled to 4 weeks paid annual leave exclusive of statutory / local holidays as agreed annually by the Company…”

 

15.      Holiday Pay

 

a)             As per clause 9 of the Contract Mrs McDonald was entitled to 20 days annual leave per year.  Mrs McDonald was employed for 9 months and was therefore entitled to a total of 15 days annual leave over this period. No point was taken as to whether or not Mrs McDonald was obliged to use some of that entitlement in 2016 and / or if she did not whether or not she was entitled to roll it over into the next year.

 

b)             The Tribunal proposed to deal with this issue on the basis that over a period of 9 months Mrs McDonald was entitled to be paid for 15 days of annual leave in circumstances where that leave was not in fact used. Neither party objected to that approach. It was also agreed that Mrs McDonald, upon leaving her employment had not been paid for any of her annual leave in lieu of taking it.

 

c)             It followed that the issue for the Tribunal to determine was how much of her annual leave entitlement Mrs McDonald had in fact taken. The case as put by the Respondent was that Mrs McDonald was only entitled to 11 days of annual leave but had taken 13 days over the 9 month period of her employment. She was therefore not owed any payment in lieu of unused holiday. When questioned Mrs Creighton sensibly conceded that it must be right, per the Contract, that Mrs McDonald accrued 15 days of annual leave during her employment. On the Respondent’s case Mrs McDonald was therefore owed a payment in lieu of at least 2 days of annual leave.

 

d)             The Tribunal heard evidence from Mrs Creighton that Mrs McDonald had taken 5 days holiday from 28th November to 2nd December. Mrs McDonald disputed this. Her position was that she had taken no annual leave at this time. Unfortunately there was no evidence other than the two witnesses (and their respective recollections) on this point. The Tribunal was presented with a table by Mrs Creighton which purported to show when Mrs McDonald was on annual leave. Unfortunately this document had been produced for the purposes of the hearing and was not presented with the source material upon which it was based.

 

e)             Mrs Creighton was able to offer no explanation as to why the source material, from which the information in the table had been drawn, was not before the Tribunal. Equally Mrs Creighton was able to offer no explanation as to why such material had not been disclosed to Mrs McDonald. Given: (i) the various difficulties that Mrs McDonald had encountered vis-à-vis disclosure, which had plainly hampered the preparation of her case; and (ii) the fact that the calculation by the Respondent (that Mrs McDonald had accrued 11 days of annual leave) was plainly wrong, the Tribunal had grave concerns about the weight which could and properly should be placed on the table produced by the Respondent.

 

f)               Moreover, it seemed to the Tribunal that an employer properly administered should be able to produce reliable records as to: (i) their employees’ holiday entitlement; and (ii) how much of that entitlement had been used. By its own admission the Respondent plainly had such records, their apparent lack of reliability / accuracy notwithstanding, but it had elected not to provide them to Mrs McDonald or the Tribunal. It is noted that this was in breach of an order for disclosure by the Tribunal.

 

g)             The Tribunal took the view that it should not be difficult for an employer, at any time, to be able to establish with certainty, without any trouble and with alacrity, the current holiday entitlement of an employee; it was in the Respondent’s gift (or it should have been) to do this. The fact that the Respondent was either unable to or elected not to do so in contravention of an order of the Tribunal does not reflect well on it, or those associated with / responsible for its administration. The Tribunal took the view that it would be unjust to allow the Respondent to benefit from its questionable conduct in this regard.

 

h)             Ultimately therefore, the Tribunal preferred the evidence of Mrs McDonald on this point. It was difficult to see how Mrs McDonald could be expected to prove that she was not on annual leave. Equally, given that at the time the claim was filed Mrs McDonald was no longer employed by the Respondent the Tribunal deemed it to be unfair to hold the fact that she could not produce any contemporaneous company records to support her position, against her. Accordingly the Tribunal found that Mrs McDonald was not on annual leave between 28th November and 2nd December.

 

i)               The other point of dispute was over annual leave which Mrs McDonald did take between 8th April 2017 and 17th April 2017. The most helpful evidence on this point was an email sent by Mrs McDonald to the other members of staff on the evening of 8th April which was a Saturday. The email in so far as is relevant reads as follows:

 

Hi Ladies,

 

 Just to remind you all that I am now on hold us till next Monday. Amy will be in the office and out and about if you have any questions she will only be to happy to help you.

 

As you all no it’s Easter next week. Anyone working bank holidays will receive time and a half for. The only holidays we will be offering double time for mobing forward will be Christmas day…”

 

j)               Having heard from both parties the Tribunal finds that Mrs McDonald was indeed on annual leave from 10th April 2017 until 17th April 2017. It was understood that Mrs McDonald would usually work a six-day week (as evidenced by the email sent on a Saturday). The Tribunal finds the language used, “I am now on holiday until next Monday” informative in this regard. As also referred to in the email 14th and 17th of April were bank holidays. Per clause 9 of the Contract bank holidays are not included in the annual entitlement.

 

k)             It follows that Mrs McDonald took a total of 5 days of annual leave during her employment meaning that in the absence of receiving any payment in lieu, she would be owed the equivalent of 10 days’ wages. The Tribunal accordingly finds that this claim succeeds; that the Respondent has acted in breach of Contract and that Mrs McDonald is awarded the equivalent of 10 days wages by way of damages.

 

16.      Unpaid Wages

 

a)              Surprisingly, Mrs Creighton in her evidence admitted that Mrs McDonald was not paid any wages on 31st July 2017, when the Contract terminated. Mrs Creighton also admitted that this failure to pay these wages was a breach of the Contract, specifically in respect of clause 8.

 

b)             In light of this admission the Tribunal finds that this claim succeeds and awards Mrs McDonald the equivalent of 1 month’s wages by way of damages for breach of clause 8 of the Contract.

 

17.      Claim for Overtime

 

a)             In light of the admissions made by the Respondent and the Tribunal’s finding vis-à-vis the Contract the Tribunal asked Mrs McDonald why she thought she was entitled to be paid overtime. On the basis that the Contract represented her terms of employment, which was after all the basis of her claim, the Tribunal was not able to understand the basis upon which a claim for overtime was being advanced. The Tribunal also noted that Mrs McDonald had presented no evidence as to how much overtime she was owed, even if she was entitled to it.

 

b)             Mrs McDonald conceded, in the Tribunal’s view sensibly, that she could not realistically maintain this head of claim in light of the evidence upon which she was relying and in light of the findings made by the Tribunal vis-à-vis the Contract. Mrs McDonald accordingly withdrew this claim. It follows that the Tribunal dismissed this claim.

 

18.      Claim for increase in wages

 

a)              Mrs McDonald also claimed that the Contract entitled her to an increase in wages, per clause 3. Mrs Creighton did not dispute that this was what the Contract stated but repeated her argument that on the basis of Mrs McDonald’s alleged statement, (that the Contract was not worth the paper it was written on) she had not received any uplift in her salary contrary to what was stipulated in the Contract.

 

b)             In light of the finding vis-à-vis the Contract, the admissions made by Mrs Creighton in relation thereto, the lack of evidence supporting Mrs Creighton’s position and the conceptual (and legal) difficulties with the argument(s) being advanced by the Respondent, the Tribunal found that this Claim succeeded and that therefore Mrs McDonald was entitled to an increase in her salary as claimed and as provided for by the Contract. The Tribunal therefore awards Mrs McDonald the difference between the wages she actually received and the wages that she should have received by way of damages, as set out below.

 

19.      Claim for interest on a personal loan

 

a)             Mrs McDonald also made a claim for damages in respect of the interest she had paid on a personal loan, which she claimed to have taken out on account of her wages not being paid to her, as expected on 31st July, her last day of employment. As set out above there was no dispute that Mrs McDonald had not in fact received her final wages and the Tribunal has made a finding that in failing to pay Mrs McDonald for her final month of employment, the Respondent had acted in breach of the Contract.

 

b)             The question for the Tribunal therefore was whether or not the failure of the Respondent to pay Mrs McDonald for her final month of employment, and therefore act in breach of the Contract had caused (or been an operative cause) for Mrs McDonald to obtain a personal loan. Put another way, Mrs McDonald sought to persuade the Tribunal that but for the Respondent’s failure to pay her her final month’s wages, she would not have needed to take out the personal loan and would not therefore have been required to pay the associated cost. Mrs McDonald asks the Tribunal to place her back into the position she would have been in had the Contract not been breached in this way.

 

c)             The Tribunal was provided with a copy of the loan agreement which showed that Mrs McDonald and her husband took out a personal loan on 3rd August 2017. The Tribunal noted that this was three days after the Respondent had failed to pay Mrs McDonald her July wages. The Tribunal also notes that the reason for the borrowing as stated on the loan agreement is ‘cash-flow’.

 

d)             Mrs McDonald’s case in this regard was put extremely simply: she states that she and her husband had various household expenses and other normal monthly bills to pay. Their ability to meet these obligations in part depended on Mrs McDonald’s salary. They had no notice or expectation of Mrs McDonald not being paid on 31st July, and the direct result of her not being paid was to cause a short-term but nevertheless potentially serious cash-flow issue. Mrs McDonald states that she and her husband had no choice but to obtain a personal loan in order to ‘plug the gap’ left by the Respondent’s breach of the Contract.

 

e)             On behalf of the Respondent Mrs Creighton did not really offer any riposte or seek to challenge Mrs McDonald’s argument. Mrs Creighton had previously requested to see the loan documentation which was provided in the discovery process but did not seek to argue that the loan had not been taken out. On behalf of the Respondent Mrs Creighton sought to suggest that the loan and the failure to pay wages were unconnected and pointed to the fact that Mrs McDonald’s husband was also a signatory on the loan agreement, to demonstrate that the loan had nothing to do with the non-payment of wages. Mrs McDonald gave evidence in reply that she was unable to secure the loan without her husband also being a signatory / becoming jointly and severally liable.

 

f)               The Tribunal ultimately preferred the evidence of Mrs McDonald on this point. Again, she was a more convincing and believable witness who presented her case and gave her evidence in a clear, uncomplicated and matter-of-fact fashion. By contrast Mrs Creighton was at times confusing and self-contradictory. Unfortunately, she gave the impression of someone who was searching for answers and trying to manufacture an argument / arguments ‘on the hoof’.

 

g)             Regrettably from the Respondent’s perspective, on this point, as with most of the other issues in the case, Mrs Creighton seemed to be underprepared and unfamiliar with the material she had tasked herself with presenting. Her argument seemed to come down to one of remoteness; Mrs Creighton seemed to be making her point by way of a rhetorical question, namely, ‘how can my company be responsible for the cost of a loan that Mrs McDonald chose to take out with her husband? I had no control over that. That is something she did of her own free-will.’

 

h)             In some circumstances this point may have had some considerable rhetorical force but in the Tribunal’s view, it is axiomatic that if you do not pay someone their wages, that is likely to cause them financial difficulties. Either by way of a short-term cash-flow problem or longer term because it causes somebody to miss a mortgage payment or a school fee instalment, or something equally important. As an employer the Respondent has a responsibility to all of its employees which includes paying them the salary they have earned, when it is due.

 

i)               To suggest, as Mrs Creighton seemed to, that a failure or refusal to pay wages was not necessarily connected to Mrs McDonald’s decision to take out a personal loan, was in the Tribunal’s view difficult. Particularly given the timing of the loan agreement (3 days after the failure to pay the wages) and the stated reason for the loan (cashflow). In the Tribunal's view not only was it foreseeable but it should have been obvious that failing to pay the wages of an employee, particularly without warning, would give rise to financial difficulties which in turn would require an employee to take some remedial action. Mrs Creighton made an active decision to withhold Mrs McDonald’s wages. The Tribunal have found that that decision was without justification. The Tribunal also finds that the reason Mrs McDonald took out the personal loan was on account of the failure of the Respondent to pay her her final month’s wages. It follows that in order to place Mrs McDonald back into the position she would have been in had the breach not occurred, Mrs McDonald is entitled to receive, by way of damages, all of the costs associated with taking out the loan.

 

20.       The Counterclaim

 

a)             The final issue for the Tribunal to determine was whether or not Mrs McDonald had falsified expense claims in relation to professional training on the ‘TagTronics’ system. In essence, what Mrs Creighton seemed to be arguing was that Mrs McDonald had organised a series of training sessions for various members of the Absolute Care team.

 

b)             Mrs Creighton alleged that these training sessions were all unnecessary and were only organised, in order to facilitate Mrs McDonald’s alleged affair with the gentleman who was to provide the training sessions. In her own words Mrs Creighton described this as a ‘ruse’ engineered by Mrs McDonald to facilitate an extra-marital affair at the expense of the Respondent.

 

c)             Unsurprisingly Mrs McDonald denied having an extra-marital affair, denied organising unnecessary training sessions and denied falsifying expense claims.

 

d)             Much time was taken up with exploring the evidence surrounding the Counterclaim but as indicated above, the primary focus of the Respondent was on the alleged extra marital affair, which seemed to the Tribunal to be more focussed on embarrassing Mrs McDonald than anything else. The reason the Tribunal formed this view was each of the complained about training sessions not only took place with the full knowledge of Mrs Creighton, but were also paid for directly by the Company through Mrs Creighton. The evidence was that Mrs Creighton was consulted about each training session and the costs involved (including the attendant travel and hotel expenses).

 

e)             Moreover, the Tribunal heard evidence from Mrs Creighton that she herself voluntarily attended most of the training sessions. There was in fact no dispute that the training sessions were properly organised, authorised and paid for. There was also no dispute that the training sessions took place on each occasion as requested by the Respondent. It is therefore difficult to see how or why the Respondent could be able to make a claim against Mrs McDonald. There was certainly no evidence of any expenses being claimed for training sessions, flights, hotels or anything else that Mrs Creighton did not have prior knowledge of or indeed on the Tribunal’s view of the evidence, approved on behalf of the Respondent.

 

f)               In the circumstances, even if the Tribunal was prepared to accept the evidence given by Mrs Creighton that Mrs McDonald was having an affair at the time, the Tribunal does not see how that fact could or would have any bearing on whether or not Mrs McDonald had falsified expense claims in relation to unnecessary training sessions. The training sessions were organised at the request of the Respondent, paid for and authorised (attendant expenses included) by Mrs Creighton on behalf of the Respondent and attended by those members of the Absolute Care team who needed the training, including Mrs Creighton.

 

g)             If the monies were paid by the Respondent (which they were) for services which were provided and received by the Respondent (which they were) it is not at all clear how or why Mrs McDonald can be liable to repay such monies to the Respondent. Mrs Creighton was not able to assist the Tribunal on this point at all and the Tribunal consequently had no hesitation in dismissing the Counterclaim.

 

DAMAGES

 

21.      In light of the above findings the Tribunal awards the following sums by way of damages to Mrs McDonald:

 

a)            In respect of the claim for withheld holiday pay: £1,124.05

 

                                                     i.                   For the sake of clarity this has been calculated on the basis that Mrs McDonald was contracted to work a 6-day week or 312 days per year. The Tribunal has worked on the basis that Mrs McDonald: (i) accrued 5 days (pro-rata) at her original wage of £580 per week; and (ii) accrued 10 days holiday at her uplifted wage of £40,000 per annum.

 

                                                    ii.                   Mrs McDonald took none of her holiday at the lower rate of pay and so in respect of that receives 5 days unpaid holiday at a rate of £96.67 per day which amounts to £483.

 

                                                  iii.                   Mrs McDonald took 5 days holiday at the higher rate of pay which means she is also entitled to the sum of £641.05, being the daily rate of £128.21 multiplied by 5 days.

 

b)           In respect of the claim for one month’s unpaid wages: £3,333.33

 

                                                     i.                   This amount is calculated at the higher rate of pay which Mrs McDonald should have been receiving in July 2017, namely £40,000 per annum.

 

c)            In respect of the claim for additional wages: £4,100

 

                                                     i.                   This amount is calculated by subtracting the salary Mrs McDonald was actually paid for February – June 2017 (being £12,566.67) from the salary she should have been paid (being £16,566.67). It is noted that July is not included in this calculation as Mrs McDonald has already been awarded a full month’s salary for July at the higher rate of pay under a separate head of her claim.

 

d)           In respect of the claim arising from the personal loan: £1,114.68

 

                                                     i.                   This amount reflects the gross interest on the personal loan (being £964.68) and the ‘documentation fee’ being (£150).

 

JUDGMENT

 

22.      Judgment is given in favour of the Claimant Mrs McDonald who is awarded damages for breach of contract as detailed above in the total amount of: £9672.06

 

 

 

 

 

Advocate Ian Jones, Deputy Chairman                                                    Date:

 

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Page Last Updated: 05 Jun 2018