Member J Smillie Tribunal Member R Henderson Mrs L Beaton v Chemcem Scotland Ltd — 2021

The claimant, who was a shareholder and director of Chemcem Scotland Ltd, brought claims for unlawful deduction of wages, holiday pay, and sex/marital status discrimination. At the hearing she said she was no longer pursuing the holiday pay claim and that the discrimination claim could not proceed, so those claims were treated as withdrawn and dismissed following withdrawal. The tribunal therefore went on to determine only the unlawful deduction of wages claim.

The wages claim depended on whether the claimant had been paid below the national minimum wage. The tribunal found that after the parties separated in 2016 she continued to do limited administrative work for the company from the former matrimonial home, mainly processing invoices, making or arranging payments, monitoring bank balances, and dealing with occasional ad hoc matters. It accepted evidence that this work took around one to two hours a day. The claimant had been paid a monthly salary of £1,000, and the tribunal found that an accountant had previously advised that she should be paid that amount through PAYE, with dividends intended to form the bulk of the director's remuneration.

The claimant had been ordered to provide information about the hours she actually worked but did not do so. The tribunal rejected her evidence that she worked a 39-hour week, describing her evidence as unreliable and preferring the documentary material, including bank statements and account records, as to what work was actually being done. On that basis it inferred that she worked about 50 hours per month.

Applying the National Minimum Wage Regulations 2015 calculation, the tribunal found that £1,000 divided by 50 hours produced an hourly rate of £20, which was above the national minimum wage. The unlawful deduction of wages claim therefore failed. The tribunal also noted that the claimant had not complied with the case management orders requiring proper particulars of the hours worked, which meant it could not conduct a more exact enquiry into the alleged underpayment.