Claimant v The Secretary of State for Business, Energy and Industrial Strategy
Outcome
Individual claims
The tribunal found that the Secretary of State correctly calculated the claimant's week's pay based on her P60 showing £6,200 for tax year to 5 April 2022, giving weekly pay of £119.23. The claimant's evidence that she worked additional hours at NMW which were owed as a debt was not accepted. The claimant was sole director and decision maker; any debt would have been recorded in the company accounts but was not; and she could not produce time sheets or records to support her claim.
The tribunal found that the Secretary of State correctly calculated holiday pay based on the claimant's actual pay as evidenced by her P60. The claimant argued for a higher rate based on alleged unpaid hours at NMW, but the tribunal was not persuaded on the balance of probabilities that such additional hours were worked or owed.
The claimant confirmed at the hearing that she accepted she had been paid the correct amount in respect of arrears of pay and did not pursue this claim.
The notice pay claim failed on the same basis as the other claims. The tribunal found that the Secretary of State correctly calculated notice pay based on the claimant's actual weekly pay of £119.23 as evidenced by her P60, and the claimant's evidence regarding additional unpaid hours was not accepted.
Facts
The claimant was employed by Rug Rescue Ltd from February 2011 to July 2022, becoming sole director after her father's death. She claimed that during the pandemic she agreed with her father to take reduced monthly payments temporarily, with the shortfall to be paid later when business improved. She claimed this resulted in unpaid wages at NMW rate for 40 hours per week. When the company became insolvent, she claimed redundancy and other payments from the Secretary of State. The Secretary of State calculated payments based on her P60 showing annual pay of £6,200, giving weekly pay of £119.23. The claimant argued her true weekly pay should be calculated at £380 (40 hours at £9.50 NMW).
Decision
The tribunal found that the Secretary of State correctly calculated the claimant's week's pay at £119.23 based on her P60 evidence. The tribunal was not persuaded that the claimant had worked additional hours at NMW that remained unpaid. Key factors were that the claimant was sole director and decision-maker, any debt would have been recorded in accounts but was not, and she could not produce time sheets or records. All claims dismissed except arrears of pay which was conceded.
Practical note
When calculating insolvency payments, tribunals will rely on objective evidence such as P60s showing actual pay received, and claims of unpaid wages require documentary evidence, particularly where the employee was also a director with control over company record-keeping.
Legal authorities cited
Statutes
Case details
- Case number
- 1401136/2023
- Decision date
- 20 August 2024
- Hearing type
- full merits
- Hearing days
- 1
- Classification
- contested
Respondent
- Sector
- public sector
- Represented
- No
Employment details
- Role
- Director and employee with duties including running the warehouse, washing and drying rugs, repairs, invoicing, cleaning, marketing, accounts, Director duties
- Salary band
- Under £15,000
- Service
- 11 years
Claimant representation
- Represented
- No