Mr C Montanaro v Lansafe Ltd: 2203148/2020
| Judgment Date | 01 April 2021 |
| Citation | 2203148/2020 |
| Published date | 20 April 2021 |
| Court | Employment Tribunal |
| Subject Matter | Working Time Regulations |
Case No:2203148/2020 V
10.5 Reserved judgment with reasons – rule 62 March 2017
EMPLOYMENT TRIBUNALS
Claimant: Mr C Montanaro
Respondent: Lansafe Limited
Heard at: by CVP On: 4, 5 and 8 March 2021
Before: Employment Judge N Walker
Members: Ms J Tombs
Mr S Godecharle
Representation
Claimant: in person
Respondent: Ms L Halsall of Counsel
RESERVED JUDGMENT
The unanimous judgment of the Tribunal is that the Claimant:
1 was automatically unfairly dismissed pursuant to section 100(1)(e) of the
Employment Rights Act 1996;
2 was dismissed in breach of contract and is entitled to his notice
3 suffered an unauthorised deduction from his wages in terms of both actual
wages due and holiday pay.
The Claimant‘s remaining claims are dismissed.
The Respondent is ordered to pay the Claimant the following sums:
1 The sum of £416.00 being a net sum, by way of breach of contract
2 The sum of £ 2827.50 by way of unauthorised deductions made up as
to £2,320.00 by way of unpaid salary and £507.50 by way of unpaid holiday
pay, subject only to such deductions for tax and employee’s national insurance
as have been accounted for to HMRC in relation to these payments to the
Claimant and for which the Respondent produces documentary evidence to the
Claimant.
3 The sum of £3,346.98 being a compensatory award for unfair dismissal.
REASONS
Case No:2203148/2020 V
10.5 Reserved judgment with reasons – rule 62 March 2017
The Claim
1 The Claimant brought claims of automatically unfair dismissal under
sections 100(1)(d) and (e) of the Employment Rights Act 1996. The
Claimant also brought claims of unauthorised deductions relating to his
normal pay and holiday pay and he claimed breach of contract. The breach
of contract claim was for both notice and a more general claim that he
should have been put on furlough.
The Evidence
2 The Tribunal heard evidence from Mr Lee Roby who was the Respondent’s
managing director and from the Claimant himself. We had an agreed
bundle of documents. In the course of the hearing, we were given a signed
copy of the Claimant’s employment contract as the Respondent had
supplied the unsigned version in the bundle.
Facts
3 The Claimant is an IT professional. He is Italian but speaks English well,
although clearly it is not his first language. He was unaware that he could
have asked for an interpreter. We are satisfied that he understood the case
as it progressed and we asked him to tell us if he ever was uncertain as to
what was being said, or what he was asked. Nevertheless, we do not think
he always fully understood everything that Mr Roby discussed with him in
the course of his employment.
4 The Respondent is a computer specialist company which provides staff and
services to other companies. Mr Roby is its managing director.
5 There were a number of key facts which were in dispute in this case. It was
therefore necessary to determine what happened. We did this by reviewing
the documents very carefully, but on occasions it was necessary to
determine matters where there was no documentary assistance. This was
a case where the evidence was frequently incomplete. The Claimant was
a litigant in person. The Respondent had not disclosed certain documents
that were referred to in their only witness’s statement. The Respondent
had not disclosed any communications between it and its client, Boohoo’s
IT department even though the Claimant was employed to work there and
that was a key factor in the case. There were sometimes direct clashes of
oral evidence on certain key facts.
6 The Tribunal was invited to consider the credibility of the witnesses and did
so. We concluded that the Claimant was credible, and his evidence was
consistent with the documents. Mr Roby's recollection was frequently
unreliable. It was clear from the responses he gave during the course of
his evidence that he was under a lot of pressure at work. He told the
Tribunal that he got large numbers of emails each day and admitted he did
not read them all. He seemed to be the main point of contact for much of
the Respondent’s business. He was often confused when referring back to
events. We concluded that Mr Roby was not able to remember clearly or
precisely what had happened. On occasions his evidence was clearly
incorrect.
Case No:2203148/2020 V
10.5 Reserved judgment with reasons – rule 62 March 2017
7 The Claimant started work for a recruitment company called Systeem on
14 August 2019. In practice, Systeem provided his services to the
Respondent, which in turn provided his services to Boohoo, a well-known
fashion group.
8 The Claimant’s job title was IT Infrastructure Engineer. Mr Roby, in the
witness evidence talked about the Claimant being a first and second stage
responder. We understand that in practice he did a range of
troubleshooting and work on any IT problems in the Boohoo office location
at Euston Tower, London, and that would include induction work with new
starters, as well as sorting a range of problems which could involve physical
work which necessitated him being in the office, but a significant proportion
of his work could be done through a computer remotely.
9 The Claimant’s contract with Systeem ended in February 2020. In the
bundle, we have emails in February 2020 between the Claimant and Mr
Roby about the possibility of the Claimant working directly for the
Respondent and continuing the work at Boohoo. In effect, the Respondent
decided to cut out Systeem and contract directly with the Claimant, for him
to continue the same work for Bohoo.
10 Mr Roby asked the Claimant to commence work on 17 February, which
would be immediately after his contract with Systeem ended. The Claimant
wanted to start work a week later, on 24th February. His reason for this
was that he was due to go to Sweden to see his father-in-law, who was
terminally ill.
11 Mr Roby was keen for the Claimant to start immediately and so they agreed
that he would start and then take the three days off in his first week of
employment, on the 19th 20th and 21st of February, in order to go to
Sweden.
12 When the Claimant agreed in principle to this arrangement, Mr Roby sent
him an email with attachments which were a contract of employment, a new
employee details form and a new starter form for payroll. Mr Roby then
sent the Claimant a revised employment contract, which he signed. Mr
Roby also asked the Claimant for the dates of his trip to Sweden and then
arranged for a holiday request form to be completed by an HR staff
member, which he, Mr Roby, signed, so that it could be put into their
administration records to confirm the dates of the holiday. The Claimant
was never sent that form, nor was he shown it or told about it.
13 The Respondent has a Handbook. A hard copy of this handbook is usually
given to staff at their induction meeting. It is also located on a web portal
which is explained to employees at their induction, when they are given a
password to access it. Mr Roby assumed the Claimant was given some
sort of induction. However, he accepted that the usual process would have
been for the Claimant to have gone to the Respondent’s offices for that
process, but as he was based in London and the office was in Wigan, that
did not happen. Mr Roby, on being questioned about this, assumed the
Claimant’s line manager at the Respondent, Luke Finch, would have
arranged for some sort of induction, but he had no knowledge of when that
took place or what was done.
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