Mr T Foley v Mr P Sarkar T/a Innovate from Zero: 4105479/2020
| Judgment Date | 21 April 2022 |
| Date | 21 April 2022 |
| Citation | 4105479/2020 |
| Published date | 06 May 2022 |
| Court | Employment Tribunal |
| Subject Matter | Unlawful Deduction from Wages |
EMPLOYMENT
TRIBUNALS
(SCOTLAND)
Case no
4105479/2020
(V)
Held by
means
of
the
Cloud
Video
Platform
on 4, 5 and 6
April
2022
Employment
Judge
W
A
Meiklejohn
Tribunal
Member
Mr
J
McElwee
Tribunal
Member
Mr
G
McKay
Mr
T Foley
Claimant
Represented
by:
Mr
S
Smith -
Solicitor
Mr
P Sarkar
t/a
Innovate
from
Zero
Respondent
In
Person
JUDGMENT
OF THE
EMPLOYMENT
TRIBUNAL
The
unanimous
Judgment
of
the
Employment
Tribunal is as
follows
-
(a) the
claimant’s
claim
of
detriment
brought
under
section
47B
of
the
Employment
Rights
Act
1996
(“ERA”)
does
not
succeed
and is
dismissed;
(b)
the
claimant’s
claim
of
breach
of
contract
by
reason
of
the respondent’s
failure
to pay
National
Minimum
Wage
(“NMW”)
succeeds
and the
respondent
is
ordered
to
pay
to
the
claimant
the
sum
of
NINETEEN
POUNDS
AND
EIGHTY
PENCE
(£19.80).
(c)
the
claimant’s
claim
of
unlawful
deduction
of
wages
by
reason
of
the
respondent’s
failure
to
pay
holiday
pay
succeeds
and
the
respondent
is
ordered to
pay
to the
claimant
the
sum
of
NINETY
FOUR
POUNDS AND
FIFTEEN
PENCE
(£94.15).
Page 2
4105479/2020
(V)
(d)
the
claimant’s
claim
of
failure
to
provide
an
initial
statement
of
employment
particulars
succeeds
and,
as
the
claimant’s
claims
have
succeeded
in part
and
awards
have been
made,
the
respondent
is
ordered
in
terms
of
section
38
of
the
Employment
Act
2002
to
pay
to
the
claimant
the
sum
of
FOUR
HUNDRED
AND
SEVENTY
POUNDS
AND
SEVENTY
SIX
PENCE
(£470.76).
(e)
the
claimant’s
claim
of
failure
to
provide
itemised
pay
statements
succeeds
and
the
Employment
Tribunal
makes
the
following
declarations
-
(i)
between
August
2019
and
February
2020
inclusive
and in
May
2020,
the
respondent
failed to
give
the
claimant
itemised pay
statements
which
complied
with
section
8(2)
ERA,
(ii)
in the
case
of
the
statements
between
August
201
9
and
February
2020
inclusive,
this
was
because
the
claimant
was
unable
to
access
them
at
or
before
the
time
when
the
relevant
payment
of
salary
was
made
to him,
(iii)
in
the
case
of
the
statement
for
May
2020,
this
was
because the
claimant
was
unable
to
access
it
due
to
his
no
longer
having
access
to
the
email
account
to
which
it
was
sent,
and
(iv)
by
virtue
of
section
11(3)
ERA, we
did
not
have
jurisdiction
to
determine
any
question
as
to the
accuracy
of
the
amounts
stated in
the
particulars
contained
in the
itemised
pay
statements
which
were
provided to
the
claimant.
(f)
In
respect
that
the
respondent
has
already
paid to the
claimant
(per
his
solicitors)
the sum
of
TWO
HUNDRED
POUNDS
(£200.00) the
respondent
is entitled to
deduct
this sum
when
complying
with the
Tribunal’s
orders
for
payment
set
out
above.
REASONS
1 . This case
came
before
us
for a final
hearing,
conducted
remotely
by
means
of
the Cloud
Video
Platform,
to
determine
both
liability
and
remedy.
The claimant
was
represented
by
Mr
Smith and
the
respondent
participated in
person.
Page
3
4105479/2020
(V)
Procedural
history
2.
The
most
recent
preliminary
hearing
took
place
on
20
August
2021
(before
Employment
Judge
Shepherd).
The
outcome was
a
case
management
order
which
included
the
following
-
(a)
the
claimant’s
claim
of automatically
unfair
dismissal
for
making
a
protected
disclosure
(section
103A ERA) was
dismissed
upon
withdrawal
by
the
claimant;
(b)
the
claimant’s
claim
that
he
was subjected to
detriment
for
taking
action
to
enforce
his
right
to
NMW
(section
23
National
Minimum
Wage
Act
1998
and
section
48
ERA)
was
dismissed
upon
withdrawal
by
the
claimant;
(c)
the
respondent’s
application
to
amend
the
response
to
add
an
employer’s
contract
claim
was
refused;
(d)
the
respondent’s
application
under
rule
50
(contained
in
Schedule
1
to
the
Employment
Tribunals
(Constitution
and
Rules of Procedure)
Regulations
2013)
that
the
final
hearing
be
heard
in
private
was
refused;
(e)
within
7
days
of receipt of the order,
the
parties
were to
agree,
and
notify
the
Tribunal
of,
any
suggested
changes
to the
agreed
list
of
issues.
3.
EJ
Shepherd’s
Note
recorded
that,
while
the
respondent
accepted
that
the
effective
date
of
termination
of
the
claimant’s
employment
was
15
May
2020,
he
wished
to
reserve
his
position
that
some of
the
earlier
detriments
said
to
arise
in
the
protected
disclosure
claim
(those
preceding
15
May
2020)
did
not
form
part
of
an
act
extending
over
a
period
in
accordance
with
section
48
ERA.
EJ
Shepherd
directed
that
the
question
of whether
the
detriments
relied
upon
formed
part
of
a
series of similar
acts
or
failures
should
be
determined
by
the
Tribunal
at
the
final
hearing.
Agreed
list
of
issues
4.
The
agreed
list
of issues
contained
within
EJ
Shepherd’s
Note
(in
relation
to
which
we
understood
no
changes
were suggested)
was
in
these
terms
-
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