Gaby Hardwicke acted for the respondent in a highly unusual employment tribunal claim recently. Working together, Tom Kirk of counsel and Gaby Hardwicke Employment Law Partner Paul Maynard (pictured) successfully defended our client against a claim from his estranged wife.
The claimant, Mrs Roman, alleged she was an employee of her husband’s business, A Plus Care Ltd, and claimed that he terminated her employment shortly after their marriage broke down. She claimed she was owed over £62,000 for 5,500 hours of unpaid overtime.
She lodged a claim for unlawful deductions from wages, insisting an oral agreement had been reached between the couple through which she would be paid up to 79 hours of overtime per week for carrying an ‘on-call’ mobile phone. Ordinarily, her claim would have been presented outside the three-month time limit for submitting such claims, but Mrs Roman claimed that under the alleged agreement all overtime would be paid at the end of the financial year and so time should run from this later date.
However, the judge found there was no agreement as to the payment of overtime. While Mr Roman’s evidence was credible, Mrs Roman’s evidence was unclear and provided ‘no credible explanation as to how the claimant calculated her hours of overtime for which she invoiced’.
Even if an agreement had been reached, on Mrs Roman’s evidence, it would have merely been a device to keep profits within the family and would not have been legally binding. In addition, as Mrs Roman’s evidence suggested the payment of overtime would be conditional on profits being made, the alleged agreement would have failed for lack of legal certainty.
The judge also held that if the alleged employment agreement had existed, an objective observer reviewing Mr Roman’s email correspondence with his wife would have firmly concluded her employment was terminated much earlier than she claimed. This would have meant Mrs Roman’s claim was presented out of time, with the time limit running from the last payment of wages and not from the end of the financial year.
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