Mr J Moore v HCL Workforce Solutions Ltd — 2021

The tribunal held that the only jurisdiction before it was a complaint under section 13 of the Employment Rights Act 1996 about the proper rate of pay and alleged delay in payment of wages. It found that the claimant and Donna Mills exchanged emails in January 2021 which, when read together, supported the conclusion that £27 per hour was only contemplated if the claimant were engaged through an umbrella company and that, on PAYE terms, the agreed gross rate was £21.17 per hour with rolled-up holiday pay of £2.56 and employer’s national insurance of £3.27. The claimant’s later insistence that he had agreed to £27 gross per hour was not accepted.

On that basis, the tribunal found that the respondent had not made unlawful deductions within section 13. It concluded that the total amount of wages paid on each occasion was not less than the amount properly payable, and that there was no deficiency to be treated as a deduction. The claimant’s alleged losses, including the amounts he calculated for unpaid wages and related hardship, therefore did not succeed as section 13 compensation.

The tribunal also considered the complaint about delayed payment. It accepted that there were significant delays and that the claimant was often waiting more than 30 days for payment, but it found the respondent could not know what wages were properly payable until the end client or NHS Professionals confirmed the shifts worked. It held that the irregularity and delay did not amount to unauthorised deductions or non-payment of wages under the statutory test, and that payments were made once the necessary information had been received.

The tribunal noted that there had been shortcomings in the respondent’s handling of the engagement, including the late provision of employment particulars, but it found no standalone section 1 claim in the ET1 and held that section 38 of the Employment Act 2002 could not produce compensation because the claimant had not succeeded in another substantive claim. It also recorded that it had no jurisdiction over the subject access request complaint. The claim was therefore dismissed as not well-founded.