Mr A Roberts and Mr D Jones v Open Door Adventure Ltd: 1600457/2023 and 1600151/2023

EMPLOYMENT TRIBUNALS

Case No 1600457/2023, 1600151/2023

Between

Mr Alan Roberts (1) Mr Daniel Jones (2)Claimant

Open Door Adventure LtdRespondent

Before

Employment Judge R Havard

Date 12 August 2024

JUDGMENT

[1]The First and Second Claimant’s claims for redundancy payment, notice pay and loss of statutory rights are not well-founded and are dismissed.

[2]The First and Second Claimant’s claims for holiday pay and unpaid wages are wellfounded and succeed.

[3]The Second Claimant’s claim for unfair dismissal is not well-founded and is dismissed.

[4]Both claims will be listed for a remedy hearing on the first open date after 15 September 2024 with a time estimate of half a day.

[5]All parties are required to submit within seven days of receiving this order dates of availability.

REASONS

[1]By a claim form dated 5 March 2023, the First Claimant, Mr Roberts, indicated that he wished to pursue claims in respect of redundancy, notice pay, holiday pay and unpaid wages.

[2]On 9 June 2023, the Respondent filed a Response claiming that it disputed all claims being pursued by Mr Roberts and the amounts claimed.

[3]By a claim form dated 24 January 2023, the Second Claimant, Mr Jones, indicated that he wished to pursue claims of unfair dismissal, notice pay, holiday pay and unpaid wages.

[4]On 11 April 2023, the Respondent filed a Response disputing the claims pursued by Mr Jones, maintaining, in relation to the claim of unfair dismissal, that first, Mr Jones had not been employed by the Respondent for the requisite period of two years and also that he had not been dismissed.

[5]At a preliminary hearing conducted on 24 June 2024, the Tribunal made a Case Management Order (“CMO”) and gave directions to enable both claims, which had been consolidated, to be pursued to a final hearing.

[6]In the CMO, it was recognised that this would present difficulties for the Respondent in that the sole director and shareholder, Mr David Orange, had sadly died in April 2024. However, Mr Henry of Croner UK, who was on the record as acting for the Respondent, appeared on behalf of the Respondent. Whilst unable to take direct instructions, he appeared in order to assist the Tribunal and to put to both Claimants in the course of their evidence the case as set out in the grounds of resistance in each of the Responses filed by the Respondent.

[7]The current status of the Respondent is uncertain. It is still an active company but, according to information from Companies House, there is also an active proposal to strike the company off the register due to overdue accounts which had not yet been filed. Mr Henry also indicated that the estate of the late director and shareholder, Mr David Orange, was still in probate.

Issues

[8]At the commencement of the hearing, a discussion was held with regard to the issues which had been identified as relevant for the Tribunal to determine in reaching its decisions.

[9]It is understood that Mr Henry had indicated to the Tribunal prior to the preliminary hearing on 24 June 2024 that he was unable to attend at that preliminary hearing as he had to attend hospital.

[10]In addition to those issues contained at paragraph 58 of the CMO, it was also identified that the following issue would have to be determined: 1. Was the First Claimant, Mr Roberts, dismissed, and, if so, was the principal reason for his dismissal his redundancy?

[11]With regard to the Second Claimant, Mr Jones, additional issues which required to be determined were: 1. Had the Second Claimant been an employee of the Respondent for the qualifying period of two years prior to 23 October 2022? 2. Was the Second Claimant an employee of the Respondent within the meaning of section 230 of the Employment Rights Act 1996 between 1 May 2020 and 1 May 2021?

[12]Otherwise, the issues agreed at the Case Management Hearing on 24 June 2024 were as follows: 1. Unfair dismissal1.1 Was the Second Claimant dismissed? The Respondent asserts that the Claimants were not dismissed.

1.2 If the Second Claimant was dismissed, what was the reason or principal reason for dismissal?

1.3 Was it a potentially fair reason?

1.4 Did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the Claimant?

1.5 The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. 2. Remedy for unfair dismissal

2.1 If there is a compensatory award, how much should it be? The Tribunal will decide:2.1.1 What financial losses has the dismissal caused the Claimant?

2.1.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

2.1.3 If not, for what period of loss should the Claimant be compensated?

2.1.4 Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

2.1.5 If so, should the Claimant’s compensation be reduced? By how much?

2.1.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

2.1.7 Did the Respondent or the Claimant unreasonably fail to comply with it by [specify alleged breach]?

2.1.8 If so, is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?

2.1.9 If the Claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?

2.1.10 If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion?

2.1.11 Does the statutory cap of fifty-two weeks’ pay or [£105,404] apply?

2.2 What basic award is payable to the Claimant, if any?

2.3 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent? 3. Wrongful dismissal / Notice pay

3.1 What was the Claimant’s notice period?

3.2 Was the Claimant paid for that notice period? 4. Holiday Pay (Working Time Regulations 1998) 4.1 Did the Respondent fail to pay the Claimant for annual leave the Claimant had accrued but not taken when their employment ended? 5. Unauthorised deductions 5.1 Did the Respondent make unauthorised deductions from the Claimant’s wages and if so how much was deducted? 6. Remedy 6.1 How much should the Claimant be awarded? Evidence 1. The Claimants gave evidence on their own behalf. 2. Taking account of the circumstances relating to the death of the sole director and shareholder, David Orange, the Respondent did not produce any witness evidence. 3. The Claimants had provided written witness statements. 4. A Bundle had been prepared and submitted with an index. The Bundle ran to 162 pages. No further documents were submitted in the course of the hearing. 5. Unless otherwise stated, any paid references in this judgment refer to pages in the Bundle. Submissions

Evidence

[13]Mr Henry provided oral submissions at the conclusion of the evidence. In support of his submission that the Second Claimant, Mr Jones, was not an employee of the Respondent in the period 1 May 2020 to 1 May 2021, he referred to the following two decisions: O’Sullivan v DSM Demolition Limited

UKEAT/0257/19/VP

and Miss B Koenig v The Mind Gym Limited

UKEAT/0201/12/RN

[14]As this affected the claim by the Second Claimant, Mr Jones, for unfair dismissal, the cases were sent to him. However, even though Mr Jones was offered time to familiarise himself with the decisions, he declined that offer and indicated that he wished to press ahead with his submissions. Miss Roberts made some brief submissions on behalf of the First Claimant, Mr Roberts.

Findings of Fact

[15]Throughout the material time, the Respondent was an Outdoor Pursuit Centre occupying a substantial site at Dolben Hall, Cefn Meiriadog, St Asaph, Clwyd. As stated, the sole director and shareholder was a person called David Orange.

[16]The Respondent had operated as an Outdoor Pursuit Centre for a number of years. Indeed, the First Claimant, Mr Roberts, had worked for the Respondent since 2004, as evidenced by a document entitled “Statement of Main Terms of Employment dated 24 February 2020” (pages 105-108). This document purported to set out the particulars of the main terms of employment of Mr Roberts. Whilst it stated that his employment with the Respondent under that contract of employment commenced on 24 February 2020, it went on to stipulate, “and your period of continuous employment began on February 2004.”

[17]The First Claimant, Mr Roberts, was employed as Chef/House Manager.

[18]Having heard him give evidence, the Tribunal was satisfied that Mr Roberts had a good working relationship with Mr Orange and he stated that he enjoyed working for him.

[19]It was not in dispute that, in September 2020, Mr Orange was diagnosed with prostate cancer. On 21 November 2022, he was admitted to hospital with a suspected stroke and a bleed on the brain and was discharged subsequently from hospital on 22 December 2022.

[20]From the time that he was admitted to hospital, Mr Orange was unable to play any part in the business.

[21]Throughout the material time, a person called Deborah Holmes-Langstone was described as PA to Managing Director (page 116).

[22]In the absence of Mr Orange, and in the absence of any individual who could formally continue to be in control, Miss Holmes-Langstone had informed Mr Roberts that she was unable to operate the bank account and therefore unable to pay wages to the staff. It also meant that the Respondent was unable to cater for customers on site and meet its booking obligations.

[23]Mr Roberts was booked to go on holiday in December 2022 but, taking account of the circumstances, he left early.

[24]Mr Roberts accepted that an email that was sent to staff on 22 November 2022 appeared to have been sent jointly by him and Miss Holmes-Langstone (page 116). In that email, which had been written by Miss Holmes-Langstone, it outlines the health condition of Mr Orange and the consequences for the business and the staff. However, whilst accepting that his name featured in the email, Mr Roberts maintained that he was not aware of its content and that he had never had anything to do with office administration.

[25]Nevertheless, it was confirmed that wages for November 2022 and holiday pay would not be paid at the end of the month and that courses that were due to take place in December 2022 and bookings for the following year had been cancelled or indefinitely postponed. Whilst it stated that both Miss Holmes-Langstone and Mr Roberts would attend the office on that day and the following day, no other staff should attend.

[26]On the following day, Miss Holmes-Langstone sent an email to the staff confirming that she had met with members of Mr Orange’s family who had said they were not in a position to pay any of the staff, confirming that she would, “get on with the job of P45s for everyone with a last date of work on 30th November given that when our wages would have been paid normally. The pay owed to you for November therefore you will now need to claim against the business. P45s will be emailed to you before I leave. You will need this for either signing on or securing other employment.” (page 118)

[27]Mr Roberts had not returned to work since that time. On 23 November 2023, Miss Holmes-Langstone sent Mr Roberts his P45 (page 124).

[28]On 5 December 2023, Mr Roberts sent an email to members of Mr Orange’s family, indicating that neither he nor other members of staff had received any pay from November 2022. (page 125)

[29]On the following day, Claire and Joanne Orange replied, saying that they were seeking legal advice but, whilst staff “had walked out as soon as dad had the stroke” they maintained that no staff members had been told to leave and Miss Holmes-Langstone had issued staff with P45s without authority. They also maintained that they were in possession of emails confirming that Miss Holmes-Langstone and the company’s accountant were able to make payments in Mr Orange’s absence but that this was ignored. The Tribunal had not been provided with sight of those emails. The members of the family say that they had no authority to operate the Respondent’s bank account and the members of staff failing to attend for work had put the Respondent in a difficult position. (Page 125).

[30]The payslip for Mr Roberts for the pay period November 2022 indicated a payment date of 5 December 2022 and net pay of £1,594.90. Although he could not recall the exact date, Mr Roberts accepted that he had received a cheque for £1,000 in December 2022 and was therefore owed £594.90 (page 149). Whilst unable to particularise his claim, Mr Roberts also maintained that he was owed holiday pay for days that had accrued but had not been taken in the period between April 2022 and November 2022. His contract of employment confirmed that his holiday year ran from 1 April to 31 March (page 106).

[31]Mr Roberts had provided an annual leave record (page 137) which illustrated the period from 1 April 2022 to 5 November 2022.

[32]Mr Roberts maintained that he had wanted to return to work but following the email exchange on 5 and 6 December 2022, no one got back to him about returning to work. He was given his P45 in November 2022 and that was the last document that he received.

[33]Mr Roberts confirmed that he had never had a letter of dismissal from the Respondent let alone a letter of dismissal relating to his redundancy.

[34]With regard to the Second Claimant, Mr Jones, he first worked for the Respondent when he was 19 years of age in October 2014. He lived and worked on site as part of a two-month training course to become a Level 1 Paddle Sports Coach.

[35]In January 2015, he worked for the Respondent for five weeks as and when they needed his support. He was paid £100 per week plus food and onsite accommodation. This continued until October 2017 when he returned to Liverpool to live with his family.

[36]In July and August 2019, he worked with the Respondent as a self-employed Freelance Instructor.

[37]In May 2020, during the Covid 19 pandemic, Mr Jones returned to the Respondent to provide support to Mr Orange with the maintenance of the site. He had a good relationship with Mr Orange. He was once again able to live on site, “to assist with maintenance and do work as and when needed.” When Mr Jones started to undertake work for the Respondent in May 2020, he was allowed to live in a small caravan onsite which belonged to Mr Orange. Before that was made available to him, Mr Jones described himself as homeless.

[38]From May 2020 to May 2021, he maintained the site which had become somewhat overgrown. He would work five days per week, though the actual days that he worked would be flexible. As stated, he was provided with accommodation and Mr Orange would provide him with small cash payments which varied but were in the region of £20 to £30 per week. There was no written agreement in place with regard to either the work he undertook or the caravan or the amount he received each week.

[39]The Tribunal concluded that Mr Jones was effectively left to his own devices as to what work he undertook on any particular day although there were occasions when Mr Orange would tell him what needed to be done. His tasks from May 2020 involved cutting wood, maintaining equipment and paths and cutting the grass and also looking after customers on site taking them on various activities, welcoming them and showing them around. The equipment that he used was that which was provided by the Respondent.

[40]He confirmed there was no real structure to what he did because there was no contract but he would also just agree with Mr Orange when he was going to take some time off. He accepted that in the period May 2020 to May 2021, there was no arrangement whereby he would be paid sick pay if he was unable to work through illness.

[41]On 1 May 2021, Mr Jones was provided with a contract in a document entitled Statement of Main Terms of Employment (pages 109 to 112). Under the heading “Commencement Date” it states: “Your employment with us under this contract will commence on 1 May 2021 and your period of continuous employment began on 1 May 2021”

[42]He was employed as an Instructor.

[43]Guests were still coming to the centre as illustrated by the photograph in September 2020 (page 130).

[44]From the time at which he entered the contract of employment with the Respondent, Mr Jones was paid on a monthly basis. Although Mr Jones’ claim form has not included information relating to his income, his Schedule of Loss indicates a net weekly basic pay of £287.13 and this is consistent with sample payslips indicating a net monthly income of £1,184.92 (page 138).

[45]Ordinarily, Mr Jones worked for ten months and was then laid off for two months over the winter.

[46]On 23 October 2022, Mr Jones was informed that he was being laid off for the winter early because the Respondent could not afford to continue to pay wages. However, based on conversations with Mr Orange and the Senior Instructor, Mr Jones anticipated returning to work as normal in mid-January 2023 when work picked up.

[47]However, on 9 November 2022, Mr Jones received an email from Miss HolmesLangstone (page 113) indicating the commencement of a consultation process on the basis that there were four instructors but the business could only sustain two. He therefore entered a redundancy consultation and, whilst he was informed that he was the most experienced instructor and was given assurances about him being selected to continue in his role, the next email that he received was on 22 November 2022 (page 116) which was the one from Miss Holmes-Langstone and Mr Roberts informing the staff of Mr Orange’s decline in health, the fact that Miss Holmes-Langstone could not access the Respondent’s bank accounts to enable payments to staff being made and that other members of Mr Orange’s family would be travelling to site to take over the management of the business.

[48]On 23 November 2022, Mr Jones received further emails from Miss HolmesLangstone (pages 117 to 124). The upshot of those emails was that the family of Mr Orange were unable to make payments to the staff and that she would be sending everyone their P45 so that they could sign on for unemployment benefit or obtain other employment. The third email attached his P45.

[49]As of 23 November 2022, Mr Jones maintained that he was owed unpaid wages of £1,232.

[50]Mr Jones heard nothing more from the Respondent although he attended on 19 January 2023 to ask about his outstanding wages. Mr Jones indicated that, when he visited site, the Respondent had re-hired former members of staff and were carrying out his job even though the Respondent had told him there was no work and that they could not employ him.

[51]Mr Jones was subsequently provided with a cheque for £500 but when he attempted to cash the cheque with his bank, it was dishonoured (page 126) although this was described as representing holiday pay as opposed to unpaid wages.

The Law

[52]Save for circumstances in which a dismissal is automatically unfair, an employee must have been employed by an employer for a minimum period of two years to qualify for the right to claim unfair dismissal.

[53]Section 230 ERA 1996 provides as follows:(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act “contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is expressed) whether oral or in writing.

(3) In this Act “worker” (except in the phrases “shopworker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under) – a) a contract of employment, or b) any other contract, whether express or implied and (if it is expressed) whether oral or inwriting, whereby the individual undertakes to do or perform personally any work or services for another party to the contract who status is not by virtue of the contract that of a client or customer of any professional business undertaking carried on by the individual; And any reference to a worker’s contract shall be construed accordingly.

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.”

[54]I have considered the guidance regarding the essential test of a contract of employment as stated in Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance

[1968] 2 QB 497

(paragraphs 515C-D) and the Supreme Court decision of Autoclenz Limited v Belcher

[2011] UKSC 41

(paragraphs 19-21).

[55]The Tribunal has also considered in the Autoclenz decision at paragraph 35 which stated that identifying the nature of the relationship between the parties necessitates a purposive approach which requires the Tribunal to take into account the relative bargaining power of the parties in deciding whether the terms of any written agreement (if present) in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case of which a written agreement (if present) is only part.

[56]Once the terms of the contract have been identified, the necessary task for the Tribunal is to determine what the nature of that contract is. the following must be present:

[57]In order to be a contract of employment, there must be mutuality of obligations. In the absence of mutual obligations of any kind, there is simply no contract at all.

[58]In Sullivan v DSM Demolition Limited UKEAT 0257/19/VP the dispute between the parties turned on the start date in relation to the Claimant’s claim of unfair dismissal which had been dismissed by the Employment Tribunal.

[59]Section 211(1)(a) of ERA 1996 provides that, for these purposes, a period of continuous employment begins “with the day on which the employee starts work”.

[60]In the summary to the Sullivan decision, the EAT stated that this means the start date of work under a contract with the employer in question. In that case, the Tribunal had found that the Claimant had done work on the Respondent’s site in the week of 26 October 2015. However, it also found that a statement of terms had been drawn up with 2 November 2015 as the start date. The Claimant had been put on the payroll with effect from that date, and had begun completing worksheets from that date. The Respondent’s client was also not charged for his work in the week of 26 October 2015. Further, he had been paid £100 in cash on site for the week of 26 October 2015, and had not complained to the Respondent about his pay.

[61]The EAT found that the Tribunal had correctly directed itself as to, and correctly applied, the law. Koenig v The Mind Gym Limited

UKEAT/0201/12

, considered. In light of the forgoing and other factual findings, the Tribunal had been entitled to conclude that the Claimant had worked in the week of 26 October 2015 under an unofficial arrangement and not under a contract of employment with the Respondent. The Claimant’s appeal was dismissed.

[62]Section 95 of the ERA 1996 sets out the circumstances in which an employee is dismissed.(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) only if) – a) The contract under which he is employed is terminated by the employer (whether with or without notice) b) . . . c) . . .

(2) An employee shall be taken to be dismissed by his employer for the purposes of this Part if – a) The employer gives notice to the employee to terminate his contract of employment, and b) At a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than on which the employer’s notice is due to expire; And the reason for the dismissal is to be taken to be the reason for which the employer’s notice is given.

[63]Dismissal on the grounds of redundancy is defined separately in section 136(1) ERA in almost identical terms to those in section 95. However, there are two special cases where there is a dismissal under the ERA for the purposes of the statutory redundancy scheme only. This includes certain events causing implied termination of the contract by operation of law (eg dissolution of a partnership, death of an individual employer or appointment of a Receiver by the Court) (section 136(5).

[64]Under Regs 13 & 13A Working Time Regulations 1998 workers are entitled to take paid holidays and to be paid holiday pay. The right under Reg 13 is 4 weeks; the right under Reg 13A is 1.6 weeks, meaning that a worker has a right to 5.6 weeks paid holiday. Under Regulation 14 WTR 1998, an employee is to be entitled to be paid, at termination of employment, the proportion of holiday that he is entitled to in proportion to the holiday year expired but which has not been taken by the employee during that time.

[65]By reg 13(3), a worker’s leave year begins on the date provided for in his contract of employment, or if there is no relevant agreement, on the date when the employment begins and each anniversary of that date.

[66]Regulation 14(3) provides for calculation of the amount of holiday pay due in these circumstances as follows: (A x B) less C, where A is the period of leave to which the worker is entitled, B is the proportion of the leave year expired and C is the period of leave taken.

[67]Holiday pay is paid gross. By Reg 30 WTR a worker can bring a claim in Employment Tribunal in respect of unpaid holiday pay under Regulation 14.

[68]Section 13 Employment Rights Act 1996 states that a worker has the right not to suffer unauthorized deductions from wages. By s27 ERA 1996 “wages” is defined. By s27(1), “In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including: a) any fee, bonus, commission, holiday pay or other emolument referable to his employment whether payable under his contract or otherwise. …” .

[69]Employment tribunals are entitled to make any award for unlawful deductions from wages gross, leaving it to the employer to work out exactly how much of the gross sum should be paid to the worker and how much to HMRC: see Walters t/a Rosewood v Barik

UKEAT/0053/16

(13 February 2017, unreported). Analysis and Conclusions

[70]Addressing the agreed issues in turn, the Tribunal has carried out an analysis of the facts and, applying the legal framework, has reached the following conclusions.

[71]For the sake of clarity, the Tribunal has considered each Claimant in turn. First Claimant Redundancy payment

[72]The Tribunal was not satisfied that the First Claimant had established that he had been dismissed for redundancy or that a redundancy situation had arisen.

[73]Whilst there was no doubt that the Respondent’s business activity was severely impacted by the illness to Mr Orange, there was no evidence to suggest the First Claimant’s employment had been terminated on 21 November 2022 as suggested by the First Claimant.

[74]Furthermore, in contrast to the Second Claimant, there was no suggestion that, prior to 21 November 2022, the Respondent had consulted with the First Claimant regarding the fact that he was at risk of redundancy.

[75]Having worked for the Respondent and having a good working relationship with Mr Orange, the First Claimant was not able to rely on any conversations or documents to support his claim that his position was redundant as at 21 November 2022.

[76]Whilst he denied knowledge of the content of the email that was sent to members of staff on 22 November 2022, which was the day after he suggests that his employment had been terminated, the email was sent by Miss Holmes-Langstone on behalf of them both and it related to “Dave’s sad decline in health yesterday”, in other words the date on which the First Claimant suggested that his employment was terminated.

[77]I am satisfied that Miss Holmes-Langstone and the First Claimant, whilst no doubt in a well-meaning way, had no actual or ostensible authority to send that email.

[78]Furthermore, I am also satisfied that Miss Holmes-Langstone had no actual or ostensible authority to send to the First Claimant and others on the following day, 23 November 2022, their P45s suggesting their employment had come to an end.

[79]Indeed, whilst the First Claimant had been assisted by the CAB in drafting it, the First Claimant sent an email on 5 December 2022 addressed to “Dear Dave Orange and family”, understandably concerned about the fact that they had not been paid in November 2022 and asking for any information they could provide about steps taken in relation to the ongoing responsibilities of the business.

[80]Members of Mr Orange’s family responded on the following day, 6 December 2022, and the response was clear to the extent that their understanding was that staff had walked out, as opposed to being dismissed, when Mr Orange had sustained a stroke. The email stated, “no staff members were told to leave work by the family and Deborah issued staff with P45s off her own back with no authority.”

[81]In the final paragraph, it stated that “some members of staff had breached there contracts by walking out and not returning this matter puts us in a difficult situation.” (sic).

[82]At this stage, i.e. in December 2022, Mr Orange, the sole director and shareholder of the Respondent, was clearly very unwell but it was not until April 2024 that he sadly died. Consequently, this does not fall to be considered under section 136(5)(b). That provision also does not apply in that it relates to an individual employer. Whilst Mr Orange was sole director and shareholder, the employer was the company.

[83]For these reasons, the First Claimant is not entitled to a redundancy payment and his claim does not succeed. Notice pay

[84]The claim for notice pay cannot succeed for the same reasons. On the basis that there was insufficient evidence that the First Claimant was in receipt of written confirmation of the termination of his employment, I find that he is not entitled to a payment in respect of notice pay and this claim in not well founded and does not succeed. Loss of statutory rights

[85]As I have found that the First Claimant has not succeeded in his claim for redundancy, it must follow that he is also not entitled to a claim for loss of statutory rights. Holiday pay

[86]I am satisfied that, in the period April 2022 to November 2022, the First Claimant would have accrued an amount of holiday pay. Indeed, in his contract, the First Claimant’s holiday year is stipulated as running from 1 April to 31 March and that he had an annual holiday entitlement of 34 days excluding bank/public holidays.

[87]The contract also stipulates that, “during the first and last year of working you will accrue annual holidays on the basis of one twelfth of the annual entitlement for each month of service in the holiday year”.

[88]In his Schedule of Loss, the First Claimant had calculated the amount owing to him in respect of holiday pay of £2,112. This was based on a claimed accrual of 22 days. The First Claimant states in his Schedule that “we have paperwork to support this” but this evidence will be required to support the amount claimed.

[89]I am satisfied that, in principle, the First Claimant is entitled to claim a sum in respect of accrued holiday pay in respect of days accrued but not taken. However, following discussions with the First Claimant and Mr Henry, it was not possible to quantify the number of days holiday taken by the First Claimant compared with the number of days accrued and therefore this will have to be resolved at a separate remedy hearing.

[90]Nevertheless, the First Claimant’s claim for holiday pay is well-founded and succeeds. Unpaid wages

[91]In the Schedule of Loss, the basis on which the claim for unpaid wages is not clear nor is the amount.

[92]However, in the course of the hearing, the First Claimant confirmed, and I accept, that he was not paid his wages for the month of November 2022. This was in the amount of £1,594.90 as evidenced by the payslip, which should have been paid at the normal time at the end of the month in which the pay had accrued. This is despite the pay date being described as 5 December 2022 in the relevant payslip (page 149).

[93]However, there appeared to be agreement between the First Claimant, Mr Roberts, and Mr Henry that the net pay in terms of wages for November 2022 was indeed £1,594.90. It was not disputed that, in December 2022, the First Claimant received a cheque for £1,000 by way of part-payment of those outstanding wages and therefore the First Claimant’s claim in respect of unpaid wages represented the balance of £594.90.

[94]However Mr Henry did not have instructions to agree this amount and, therefore, whilst I find that the claim of the First Claimant for unpaid wages is well-founded, the actual amount to be paid to him will be resolved at the remedy hearing. Second Claimant Was the Second Claimant an employee of the Respondent within the meaning of section 230 of the ERA 1996 from 1 May 2022, 1 May 2021?

[95]I recognise that the Second Claimant had worked for at the Respondent’s site sporadically from 2014.

[96]In the period prior to the Second Claimant starting to work on site in May 2020, he had indicated that he was homeless. However, during the pandemic in May 2020, he returned to the site and he was given accommodation by Mr Orange, with whom he had a close relationship, which was in the form of a caravan.

[97]I am satisfied that the Second Claimant would undertake general work as a handyman on site as well as looking after guests and taking them on various activities and that he was not working anywhere else during this period.

[98]However, there was no written contract of employment and there was no evidence to suggest that there was any formal arrangement between the Second Claimant and Mr Orange regarding either the accommodation or the basis on which he was to be paid. It was therefore not possible to infer, on the basis of the facts, that there was an implied agreement between them regarding the contractual basis on which the Second Claimant was to work on site during this period. Indeed, not only was there no formal arrangement with regard to accommodation, but the amount paid to the Second Claimant each week was also variable and were very small sums.

[99]I have concluded that the Second Claimant has failed to establish that there was a mutuality of obligation between him and the Respondent. It was clear that, at any time, Mr Orange could have required the Second Claimant to leave the caravan and there was no documentation in terms of payslips or regular payments of a sum representing wages being paid to him.

[100]Adopting the description used in the EAT’s decision of O’Sullivan v DSM Demolition Limited, this amounted to an “unofficial arrangement” between the parties and not a contract of employment.

[101]By contrast the Second Claimant did enter into a contract of employment, on 1 May 2021. Also, in accepting that contract, the Second Claimant accepted that his period of continuous employment began on 1 May 2021.

[102]Furthermore, there is a much more formal arrangement with regard to pay. He was to be paid at the rate of £10 per hour, compared with amounts varying from £20 to £30 per week in the prior period. The payslips illustrate that, in contrast to the very small cash payments in varying amounts that had been paid to him between May 2020 and May 2021, he was receiving a net monthly pay of in the region of £1,092.82, in April 2022 up to £1,617.93, in July 2022, with appropriate deductions being made for income tax and National Insurance.

[103]The contract also included terms relating to sickness absence and sickness pay, holiday entitlement, pension and disciplinary, appeal and grievance procedures.

[104]Consequently, I do not find that, between May 2020 and May 2021 the Second Claimant was an employee of the Respondent within the meaning of section 230 of the Employment Rights Act 1996. Unfair dismissal/redundancy

[105]In the circumstances, whether or not the Second Claimant was actually dismissed by the Respondent, claimed to be in November 2022, he would not have been employed by the Respondent for the requisite qualifying period of two years. Consequently, the Tribunal does not have jurisdiction to consider either the claim for unfair dismissal or, for the same reason, redundancy. Notice pay

[106]Whilst there is reference to a consultation process relating to the potential redundancy of the Second Claimant, there is no evidence to suggest that this reached a formal conclusion and that the Second Claimant was informed that he had been selected for redundancy and therefore dismissed. Indeed, for the same reason as outlined in respect of the First Claimant, I have found that Miss Holmes-Langstone had no actual or ostensible authority to issue P45s to any of the staff and therefore I do not find that the Second Claimant was dismissed in accordance with sections 95 or 136 ERA 1996. Loss of statutory rights

[107]As I have found that the Second Claimant has not succeeded in his claim for unfair dismissal/redundancy, it must follow that he is also not entitled to a claim for loss of statutory rights. Unpaid wages

[108]In the Schedule of Loss, the Second Claimant claims unpaid wages for November 2022 in the sum of £1,232.

[109]I am satisfied that neither Claimant was paid their wages for November 2022. Further, when the Second Claimant attended site on 19 January 2023 to ask about his outstanding wages, he was provided with a cheque for £500 by Joanne Orange who indicated that they were not in funds to enable them to pay the total.

[110]Unfortunately, the cheque for £500 was dishonoured and therefore the Second Claimant is still owed his unpaid wages for November 2022. Therefore, I find that his claim for unpaid wages is well founded and succeeds. However, before awarding the Second Claimant a specific amount, it will be necessary for him to explain at a remedy hearing the basis on which he arrives at the sum of £1,232 as being the amount outstanding. Holiday pay

[111]The clauses in the Second Claimant’s contract relating to holiday entitlement are the same as those in the First Claimant's contract save that, in the Second Claimant's case, the holiday year is stipulated to run from 1 January to 31 December.

[112]I am satisfied that the Second Claimant is entitled to a sum which represents the difference between the total number of holiday days accrued and those actually taken during 1 January 2022 and 31 December 2022.

[113]Unfortunately, whilst the Second Claimant makes it clear in his claim form that he is claiming holiday pay, there is no reference to the claimed holiday pay in his Schedule of Loss (page 132 – 134). Consequently, the amount of the claim will have to be quantified at a remedy hearing.