Mr R Balne and Mr R Balne v Shivaay Fast Foods Ltd and Others: 1602760/2024 and Others

EMPLOYMENT TRIBUNALS

Case No 1602760/2024

Between

Mr R Balne and Mr R BalneClaimant

Shivaay Fast Foods Ltd and OthersRespondent

Before

Employment Judge R Harfield

Date 4 February 2026

JUDGMENT

The decision of the Employment Judge is: First Claimant – Mr Rajkishore Balne

[1]The complaints of harassment related to religion or belief at paragraphs 5.1.2, 5.1.3, 5.2.1, 5.2.2, 5.2.6, 5.2.7, 5.2.8 of the List of Issues succeed and are upheld against OMSR Services Ltd and Mr Kollipara;

[2]The complaints of harassment related to religion or belief at paragraphs 5.4, 5.5.1, 5.6.1, 5.6.2, 5.6.3, 5.6.4 of the List of Issues succeed and are upheld against Mava Fast Food Ltd and Mr Kollipara;

[3]The complaints of harassment related to race at paragraphs 6.1.1 and 6.2.1 of the List of Issues succeed against OMSR Services Ltd and Mr Kollipara;

[4]The complaints of harassment related to race at paragraphs 6.3.1, 6.3.2, 6.3.3 and 6.3.4 in the List of Issues succeed against Mava Fast Food Limited and Mr Kollipara;

[5]The complaint of constructive discriminatory dismissal succeeds against Mava Fast Food Ltd;

[6]The remaining Equality Act complaints do not succeed and are dismissed;

[7]The complaint of failure to pay holiday pay succeeds against OMSR Services Limited;

[8]The complaint of failure to pay holiday pay succeeds against Mava Fast Food Limited;

[9]The complaint of unauthorised deduction from wages succeeds against OMSR Services Limited;

[10]The complaint of unauthorised deduction from wages succeeds against Mava Fast Food Limited;

[11]The complaint under Schedule 5 Employment Act 2002 (written statement of employment particulars) succeeds against OMSR Services Limited;

[12]The complaint under Schedule 5 Employment Act 2022 (written statement of employment particulars) succeeds against Mava Fast Food Limited;

[13]The complaint of failure to provide itemised pay statements succeeds against OMSR Services Limited;

[14]The complaint of failure to provide itemised pay statements succeeds against Mava Fast Food Limited Second Claimant – Mr Rajkamal Balne

[1]The complaints of harassment related to religion or belief at paragraphs 5.1.1, 5.1.2, 5.2.1. 5.2.2.1, 5.2.2.2, 5.2.2.3, 5.2.2.4 and 5.2.2.5 of the List of Issues succeed against OMSR Services Limited and Mr Kollipara;

[2]The complaints of direct religion or belief discrimination and direct race discrimination at paragraphs 3.2.2, 3.3.1, 3.3.2, 4.2.2,4.3.1 and

4.3.2 of the List of Issues succeed against OMSR Services Limited and Mr Kollipara;

[3]The complaint of discriminatory constructive dismissal succeeds against OMSR Services Limited;

[4]The remaining Equality Act complaints do not succeed and are dismissed;

[5]The complaint under Schedule 5 Employment Act 2002 (written statement of employment particulars) succeeds against OMSR Services Limited;

[6]The complaint of failure to provide itemised pay statements succeeds against OMSR Services Limited;

REASONS

[1]Introduction1.1 These proceedings concern claims brought by brothers Mr Rajkishore Balne [C1] and Mr Rajkamal Balne [C2] arising from their work (or purported work) in fast‑food franchise businesses trading in Cardiff, Port Talbot and Caerphilly. Preliminary hearings took place by video in Wales ET and culminated in a case management order made by Employment Judge Sharp on 20 February 2025, listing a seven‑day final hearing in Cardiff from 22 September to 30 September 2025 before a judge sitting alone. Employment Judge Sharp finalised a List of Issues in the case. At an earlier hearing Employment Judge Jenkins had determined the time limit issues, therefore there were none remaining before me.

1.2 The Claimants had the benefit of a Telugu interpreter when giving evidence. They confirmed they did not require an interpreter for the remainder of the hearing. No other participant sought an interpreter or any adjustments.

1.3 I had before me a hearing bundle, and a Claimants’ supplementary hearing bundle. I had written witness statements for the Claimants. For the Respondents I was originally given witness statements for 5 witnesses but in the event only heard from two witnesses: Mr Siva Kollipara [SK] and Mr Venu Gopal Reddy Kusa [VK]. Timings in the case were becoming tight, and the three additional witnesses were also unable to give any direct evidence about the material events in any event, so neither party thought it necessary for me to hear from the other witnesses.

1.4 During the course of the hearing I was given additional payslips by the Respondents by hand and an additional one by email. Their contents are not agreed by the Claimants but they did not object to them going before me on that basis. On 29 September I also received an application from the Claimants to rely on additional documents. The application was opposed by the Respondents and I refused the application other than two sets of the documents. Oral reasons were given at the time and will not be set out here; but either party can request those reasons in writing within 14 days. In short form, I allowed in some Home Office documents relating to Visas because they are public governmental documents accessible to everyone and could not prejudice the Respondents. I also indicated to the Respondents if they wanted to rely on other Home Office documents they were at liberty to do so. In fact they did not do so. The other document I allowed was one relating to VK and the Caerphilly flat. VK had yet to give evidence and therefore the Respondents were not prejudiced by the late admission of the document. On the last day of the hearing the Respondents handed in a document detailing what they say are admitted deduction from wages for C1. The content of that document is not agreed by C1 and I return to it below.

1.5 I also received oral closing arguments from both representatives. For reasons of procedural economy I do not summarise those closing arguments here, but I took them fully into account and they are incorporated by reference at appropriate places below.

1.6 Due to the nature of the issues in this case at the start of the hearing I read out, in the presence of all parties and witnesses, a general warning about the right against self-incrimination. No individual exercised that right.

[2]The Issues to be decided 2.1 The List of Issues finalised by EJ Sharp is as follows: “List of Issues - Rajkishore Balne [C1]

[1]Employment status1.1 Was the Claimant an employee of any, and which, Respondent within the meaning of section 230 of the Employment Rights Act 1996?

1.2 Was the Claimant an employee of any and which, Respondent within the meaning of section 83 of the Equality Act 2010?

1.3 Was the Claimant a worker of any, and which, Respondent within the meaning of section 230 of the Employment Rights Act 1996/ equivalent provision in the Working Time Regulations 1998?

[2]Time limits – determined on 22 January 2025 by EJ S Jenkins

[3]Direct Religion or belief discrimination (Equality Act 2010 section 13)3.1 Did the Respondents OMSR Services Ltd (employer) and/or Mr Siva Kollipara (named3.1.1 In the period August 2022 to January 2024 have an office in the chicken shop with a sacred space containing photos of some Hindu Gods, candles and Dhoop sticks. (The Claimant says this was disrespectful to his religion and belief because Hindus are traditionally vegetarian);

3.1.2 In August 2022 tell the Claimant he needed to move to Port Talbot;

3.2 Did the Respondents OMSR Services Ltd or Shivaay Fast Foods Limited (there is a dispute about who was the employer) and/or Mr Siva Kollipara (named Respondent):3.2.1 pay wages to Claimant in the period October 2022 to the end of February 2023 (date to be confirmed by Claimant) less than the wages they should have been paid [the Claimant says there was unauthorised deductions for Visa costs]?;

3.2.2 pay wages to Claimant in the period October 2022 to 5 February 2024 less than the wages they should have been paid [the Claimant says there were unauthorised deductions from what was already a net figure for tax and national insurance contributions and VAT]?;

3.2.3 On 24 January 2023, withhold information of which company had issued the COS, which company held the Claimant’s Visa and the specifics of the application number and Immigration health surcharge reference and fail to ensure the Claimant understood this information and the risk of breaching the terms of his Skilled Worker Visa;

3.2.4 On 24 January 2023 not provide the Claimant with information in order to reclaim the refund on his unused Immigration Health Surcharge remaining from his previous PSW Visa;

3.2.5 In April 2023, tell the Claimant he was unable to take time off when he had booked for a trip to India;

3.2.6 In April 2023, fail to refund a promised reimbursement to the Claimant of the cancelled trip to India;

3.2.7 In late May 2023, tell the Claimant the accountant had said the Claimant should first pay the full amount of wage because Shivaay was not good in terms of revenue and the respondent would then bank the money in order to pay the Claimant;

3.2.8 In July 2023, fail to pay the Claimant for annual leave he took in the period August 2022 to July 2023, and then tell the Claimant that the company does not pay holiday pay;

3.3 Did the Respondents OMSR Services Ltd or Shivaay Fast Foods Limited or SVSV3.3.1 In August 2023, tell the Claimant to undertake work the night before the business

3.3.2 In August 2023, not pay the Claimant the work for the night before the business

3.4 Did the Respondents OMSR Services Limited or Shivaay Fast Foods Limited or Mava should have been paid;

3.5 Did the Respondents Shivaay Fast Foods Limited or Mava Fast Food Limited (there3.5.1 In late October 2023 demand to know from the Claimant why his brother was causing

3.5.2 In February 2024 fail to pay for annual leave the Claimant had accrued but not taken when his employment ended;

3.6 Did the acts of discrimination by the Respondents cause the Claimant to resign on 11 February 2024 and constitute a discriminatory contributory dismissal? 3.6.2 If so, did any discriminatory events or incidents found materially influence the overall

3.7 Was that less favourable treatment? the same Visa as the Claimant and entered the country in the same way, but will not be a Hindu.

3.8 If so, was it because of religion or belief? The Claimants are Hindu.

3.9 Did the Respondents’ treatment amount to a detriment?

[4]Direct race discrimination (Equality Act 2010 section 13)4.1 Did the Respondents OMSR Services Ltd or Shivaay Fast Foods Limited (there is a dispute about who was the employer) and/or Mr Siva Kollipara:4.1.1 pay wages to Claimant in the period October 2022 to the end of February 2023 (date to be confirmed) less than the wages he should have been paid [the Claimant says there were unauthorised deductions for Visa costs]?;

4.1.2 pay wages to Claimant in the period October 2022 to 5 February 2024 less than the wages he should have been paid [the Claimant says there were unauthorised deductions from what was already a net figure for tax and national insurance contributions and VAT]?;

4.1.3 In April or May 2023 tell the Claimant to go to Siva Kollipara’s home in Cardiff and drive the company car telling the Claimant it was no problem that the Claimant did not have a UK driving license, and thereafter regularly permit the Claimant to drive the car knowing he did not have a license;

4.2 Did the Respondents OMSR Services Ltd or Shivaay Fast Foods Limited or SVSV4.2.1 In August 2023, tell the Claimant to undertake work the night before the business

4.2.2 In August 2023, not pay the Claimant the work for the night before the business

4.3 Did the Respondents OMSR Services Limited or Shivaay Fast Foods Limited or Mava should have been paid;

4.4 Did the Respondents Shivaay Fast Foods Limited or Mava Fast Food Limited (there4.4.1 In late October 2023 demand to know from the Claimant why his brother was causing

4.4.2 In February 2024 fail to pay for annual leave the Claimant had accrued but not taken when his employment ended;

4.5 Did the acts of discrimination by the Respondents cause the Claimant to resign on 11 February 2024 and constitute a discriminatory contributory dismissal? 3.6.2 If so, did any discriminatory events or incidents found materially influence the overall

4.6 Was that less favourable treatment? the same Visa as the Claimant and entered the country in the same way, but will not be an Indian.

4.7 If so, was it because of race? The Claimant is Indian.

4.8 Did the Respondent’s treatment amount to a detriment?

[5]Harassment related to Religion or Belief (Equality Act 2010 section 26)5.1 Did the Respondents OMSR Services Ltd (employer) and/or Mr Siva Kollipara (named5.1.1 In the period August 2022 to January 2024 have an office in the chicken shop with a sacred space containing photos of some Hindu Gods, candles and Dhoop sticks. (The Claimant says this was disrespectful to his religion and belief because Hindus are traditionally vegetarian);

5.1.2 In August 2022 tell the Claimant he needed to move to Port Talbot;

5.1.3 On 4 or 5 October 2022 tell the Claimant that during the 3 years to obtain ILR (indefinite leave to remain) the Claimant should financially struggle and likened it to the Hindu belief that suffering is a part of life, that most suffering is a result of one’s actions, and it is not about deserving suffering but learning from it;

5.1.4 From 26 December 2022 until January 2023 cut the Claimant’s hours;

5.2 Did the Respondents OMSR Services Ltd or Shivaay Fast Foods Limited (there is a dispute about who was the employer) and/or Mr Siva Kollipara do the following things:5.2.1 pay wages to Claimant in the period October 2022 to the end of February 2023 (date to be confirmed) less than the wages he should have been paid [the Claimant says there were unauthorised deductions for Visa costs]?;

5.2.2 pay wages to Claimant in the period October 2022 to 5 February 2024 less than the wages they should have been paid [the Claimant says there were unauthorised deductions from what was already a net figure for tax and national insurance contributions and VAT]?

5.2.3 On 24 January 2023, withhold information of which company had issued the COS, which company held the Claimant’s Visa and the specifics of the application number and Immigration health surcharge reference and failure to ensure the Claimant understood this information and the risk of breaching the terms of his Skilled Worker Visa;

5.2.4 On 24 January 2023 not provide the Claimant with information in order to reclaim the refund on his unused Immigration Health Surcharge remaining from his previous PSW Visa;

5.2.5 In April 2023, tell the Claimant he was unable to take time off when he had booked for a trip to India;

5.2.6 In April 2023, fail to refund a promised reimbursement to the Claimant of the cancelled trip to India;

5.2.7 In late May 2023, tell the Claimant the accountant had said the Claimant should first pay the full amount of wage because Shivaay was not good in terms of revenue and the respondent would then bank the money in order to pay the Claimant;

5.2.8 In July 2023, fail to pay the Claimant for annual leave he took in the period August 2022 to July 2023, and tell the Claimant that the company does not pay holiday pay;

5.3 Did the Respondents OMSR Services Ltd or Shivaay Fast Foods Limited or SVSV5.3.1 In August 2023, tell the Claimant to undertake work the night before the business

5.3.2 In August 2023, not pay the Claimant the work for the night before the business

5.4 Did the Respondents OMSR Services Limited or Shivaay Fast Foods Limited or Mava should have been

5.5 Did the Respondents Shivaay Fast Foods Limited or Mava Fast Food Limited (there5.5.1 In late October 2023 demand to know from the Claimant why his brother was causing

5.5.2 In February 2024 fail to pay for annual leave the Claimant had accrued but not taken when their employment ended?;

5.5.3 In January 2024 tell the Claimant what to write in two emails5.5.3.1 The first about resigning;

5.5.3.2 The second about retracting a resignation and taking a second job;

5.5.4 In February 2024 [post termination of employment] again instructing the Claimant to send an email purporting to say the Claimant was resigning when in fact he had already left;

5.5.5 In January 2024 tell the Claimant what to write in an email to be sent in the name of the Claimant’s brother about having been unwell and then resigning, when in fact the Claimant’s brother had not worked for the company for several weeks;

5.6 On 16 October 2023 did the Respondents Mava Fast Foods Limited or Shivaay Fast Foods Limited (there is a dispute about who was the employer) and/or Siva Kollipara and/or Venu Gopal Reddy Kusa tell the Claimant:5.6.1 he had to live in Caerphilly;

5.6.2 that he had to live in a particular flat;

5.6.3 provide accommodation that was unsuitable;

5.6.4 charge the Claimant an inflated rent;

5.7 If so, was that unwanted conduct?

5.8 Did it relate to religion or belief?

5.9 Did the conduct have the purpose of violating the Claimant’s dignity or creating an

5.10 If not, did it have that effect? The Tribunal will take into account the Claimant’s

[6]Harassment related to race (Equality Act 2010 section 26)6.1 Did the Respondents OMSR Services Ltd (employer) and/or Mr Siva Kollipara (named 6.1.1 In August 2022 tell the Claimant he needed to move to Port Talbot;

6.2 Did the Respondents OMSR Services Ltd or Shivaay Fast Foods Limited (there is a dispute about who was the employer) and/or Mr Siva Kollipara do the following things: 6.2.1 In April or May 2023 tell the Claimant to go to Siva Kollipara’s home in Cardiff and drive the company car telling the Claimant it was no problem that the Claimant did not have a UK driving license and thereafter regularly permit the Claimant to drive the car knowing he did not have a license;

6.3 On 16 October 2023 did the Respondents Mava Fast Foods Limited or Shivaay Fast Foods Limited (there is a dispute about who was the employer) and/or Siva Kollipara and/or Venu Gopal Reddy Kusa tell the Claimant:6.3.1 he had to live in Caerphilly;

6.3.2 that he had to live in a particular flat;

6.3.3 provide accommodation that was unsuitable;

6.3.4 charge the Claimant an inflated rent;

6.4 If so, was that unwanted conduct?

6.5 Did it relate to race?

6.6 Did the conduct have the purpose of violating the Claimant’s dignity or creating an

6.7 If not, did it have that effect? The Tribunal will take into account the Claimant’s

[7]Holiday Pay (Working Time Regulations 1998)7.1 In July 2023, did the Respondent OMSR Services Limited or Shivaay Fast Foods Limited (there is a dispute about who was the employer) fail to pay the Claimant for annual leave he took in the period August 2022 to July 2023, telling the Claimant that the company does not pay holiday pay;

7.2 In February 2024 did the Respondent Shivaay Fast Foods Limited or Mava Fast Food Limited (there is a dispute about who was the employer) fail to pay for annual leave the Claimant had accrued but not taken when his employment ended? In particular:

9.2.1 What was the Claimant’s leave year?

9.2.2 How much of the leave year had passed when the Claimant’s employment ended?

9.2.3 How much leave had accrued for the year by that date?

9.2.4 How much paid leave had the Claimant taken in the year?

9.2.5 Were any days carried over from previous holiday years?

9.2.6 How many days remain unpaid?

9.2.7 What is the relevant daily rate of pay?

[8]Unauthorised deductions8.1 Were the wages paid to the Claimant by either OMSR Services Limited or Shivaay Fast Foods Limited (there is a dispute about who was the employer) in the period October 2022 to the end of February 2023 (date to be confirmed by Claimant) less than the wages they should have been paid [the Claimant says there were unauthorised deductions for Visa costs]?

8.2 Were the wages paid to the Claimant by either OMSR Services Limited or Shivaay Fast Foods Limited (there is a dispute about who was the employer) in the period October 2022 to 5 February 2024 less than the wages they should have been paid [the Claimant says there were unauthorised deductions from what was already a net figure for tax and national insurance contributions and VAT]?

8.3 Were the wages paid to the Claimant by either OMSR Services Limited or Shivaay Fast Foods Limited or Mava Fast Foods Limited (there is a dispute about who was the employer) in the period August 2023 to February 2024 less than the wages they should have been paid;

8.4 Was any deduction required or authorised by statute?

8.5 Was any deduction required or authorised by a written term of the contract?

8.6 Did the Claimant have a copy of the contract or written notice of the contract term before the deduction was made?

8.7 Did the Claimant agree in writing to the deduction before it was made?

8.8 How much is the Claimant owed?

[9]Schedule 5 Employment Act 2002

9.1 When these proceedings were begun, was the Respondent in breach of its duty to give the Claimant a written statement of employment particulars or of a change to those particulars? This claim is against OMSR Services Limited (this is where the employment started) and Mava Fast Foods Limited (this is where the Claimant was moved to).

9.2 If the claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under section 38 of the Employment Act 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay.

9.3 Would it be just and equitable to award four weeks’ pay?

[10]Failure to provide itemised pay statements (Sections 8, 11, 12 Employment Rights Act 1996)10.1 Did the Respondent fail to provide to the Claimant at or before the time at which any payment of wages is paid to the Claimant, a written itemised pay statement? This claim is against OMSR Services Limited (this is where the employment started) and Mava Fast Foods Limited (this is where the Claimant was moved to).

10.2 If so, did the Respondent make any unnotified deductions from the pay of the Claimant in the period of 13 weeks immediately preceding the Claimant presenting his ET1 claim form?

10.3 If so, should the Tribunal order the Respondent to pay a sum not exceeding the aggregate of the unnotified deduction? The Issues - Rajkamal Balne [C2]

[1]Employment status1.1 Was the Claimant an employee of any, and which, Respondent within the meaning of section 230 of the Employment Rights Act 1996?

1.2 Was the Claimant an employee of any and which, Respondent within the meaning of section 83 of the Equality Act 2010?

1.3 Was the Claimant a worker of any, and which, Respondent within the meaning of section 230 of the Employment Rights Act 1996/ and the equivalent provision in the Working Time Regulations 1998?

[2]Time limits – determined by EJ S Jenkins 22 January 2025

[3]Direct Religion or belief discrimination (Equality Act 2010 section 13)3.1 Did the Respondents OMSR Services Ltd or SVSV Services Ltd (there is a dispute3.1.1 In the period May 2023 to August 2023 [pre-employment when the Claimant was a

3.1.2 In July 2023 bring the Claimant to the UK to work for the business to profit from his

3.1.3 In July 2023, fail to pay the Claimant for annual leave;

3.2 Did the Respondents OMSR Services Limited or SVSV Services Limited or Mava Fast3.2.1 In August 2023 until January 2024 put the Claimant’s Skilled Work Visa at risk by placing the Claimant to train and then work at SVSV Services Ltd when the Skilled Work

3.2.2 From August 2023 until January 2024 make unauthorised deductions from wages for tax, national insurance contributions and VAT;

3.3 Did the Respondents OMSR Limited or Mava Fast Food Limited (there is a dispute about who the employer was) and Siva Kollipara:3.3.1 From September 2023 until January 2024 put the Claimant on the rota for Mava Fast Food Limited despite knowing this again breached the terms of the Claimant’s Visa which only permitted him to work for the limited company his sponsored Visa was with;

3.3.2 In the period September 2023 to 5 February 2024 make unauthorised deduction from wages in respect of tax, national insurance and VAT;

3.3.3 In March 2024 fail to pay for annual leave the Claimant had accrued but not taken when his employment ended?

3.3.4 From November 2023 to January 2024:3.3.4.1 reduce the Claimant’s hours, labelling the Claimant a troublemaker for learning

3.3.4.2 make unreasonable changes to the rota at the last minute including at night when

3.3.4.3 then shout at the Claimant for being late for shift;

3.3.4.4 rota the Claimant to clean until 2:30am;

3.3.4.5 require the Claimant to travel from Caerphilly to Port Talbot for a shift of just 4 hours and with no payment for travel costs or travel time.

3.4 Did the acts of discrimination by the Respondents cause the Claimant to resign on 4 or 5 January 2024 and constitute a discriminatory contributory dismissal? 3.6.2 If so, did any discriminatory events or incidents found materially influence the overall

3.5 Was that less favourable treatment? the same Visa as the Claimant and entered the country in the same way, but will not be a Hindu.

3.6 If so, was it because of religion or belief? The Claimant is Hindu.

3.7 Did the Respondent’s treatment amount to a detriment?

[4]Direct race discrimination (Equality Act 2010 section 13)4.1 Did the Respondents OMSR Services Ltd or SVSV Services Ltd (there is a dispute4.1.1 In the period May 2023 to August 2023 [pre-employment when the Claimant was a

4.1.2 In July 2023 bring the Claimant to the UK to work for the business to profit from his

4.1.3 In July 2023, fail to pay the Claimant for annual leave

4.2 Did the Respondents OMSR Services Limited or SVSV Services Limited or Mava Fast4.2.1 In August 2023 until January 2024 put the Claimant’s Skilled Work Visa at risk by placing the Claimant to train and then work at SVS Services Ltd when the Skilled Work

4.2.2 From August 2023 until January 2024 make unauthorised deductions from wages for tax, national insurance contributions and VAT;

4.3 Did the Respondents OMSR Limited or Mava Fast Food Limited (there is a dispute about who the employer was) and Siva Kollipara:4.3.1 From September 2023 until January 2024 put the Claimant on the rota for Mava Fast Food Limited despite knowing this again breached the terms of the Claimant’s Visa which only permitted him to work for the limited company his sponsored Visa was with;

4.3.2 In the period September 2023 to 5 February 2024 make unauthorised deduction from wages in respect of tax, national insurance and VAT;

4.3.3 In March 2024 fail to pay for annual leave the Claimant had accrued but not taken when their employment ended?

4.3.4 From November 2023 to January 2024:4.3.4.1 reduce the Claimant’s hours, labelling the Claimant a troublemaker for learning

4.3.4.2 make unreasonable changes to the rota at the last minute including at night when

4.3.4.3 then shout at the Claimant for being late for shift;

4.3.4.4 rota the Claimant to clean until 2:30am;

4.3.4.5 require the Claimant to travel from Caerphilly to Port Talbot for a shift of just 4

4.4 Did the acts of discrimination by the Respondents cause the Claimant to resign on 4 or 5 January 2024 and constitute a discriminatory contributory dismissal?4.4.1 Who was the employer at the point of resignation/dismissal? Was it Mava Fast Foods

4.4.2 If so, did any discriminatory events or incidents found materially influence the overall

4.5 Was that less favourable treatment? the same Visa as the Claimant and entered the country in the same way, but will not be an Indian.

4.6 If so, was it because of race? The Claimant is Indian.

4.7 Did the Respondent’s treatment amount to a detriment?

[5]Harassment related to Religion or Belief (Equality Act 2010 section 26)5.1 Did the Respondents OMSR Services Ltd or SVSV Services Ltd (there is a dispute5.1.1 In the period May 2023 to August 2023 [pre-employment when the Claimant was a

5.1.2 In July 2023 bring the Claimant to the UK to work for the business to profit from his

5.1.3 In July 2023, fail to pay the Claimant for annual leave;

5.2 Did the Respondents OMSR Services Limited or SVSV Services Limited or Mava Fast5.2.1 From August 2023 until January 2024 put the Claimant’s Skilled Work Visa at risk by placing the Claimant to train and then work at SVS Services Ltd when the Skilled Work

5.2.2 From November 2023 to January 2024:5.2.2.1 reduce the Claimant’s hours, labelling the Claimant a troublemaker for learning

5.2.2.2 make unreasonable changes to the rota at the last minute including at night when

5.2.2.3 then shout at the Claimant for being late for shift;

5.2.2.4 rota the Claimant to clean until 2:30am;

5.2.2.5 require the Claimant to travel from Caerphilly to Port Talbot for a shift of just 4 5.4 If so, was that unwanted conduct? 5.4 Did it relate to religion or belief? 5.5 Did the conduct have the purpose of violating the Claimant’s dignity or creating an 5.6 If not, did it have that effect? The Tribunal will take into account the Claimant’s

[6]Victimisation (Equality Act 2010 section 27) 6.1. Did the Claimant do a protected act as follows: 6.1.1 The Claimant discovered that no VAT should be taken from employees’ wages (which had been taken from his wages every month) and raised this with the manager Madhavi of SVSV Services (trading as Kaspars Port Talbot) September 2023, saying this was happening because he was Telegu. 6.2 Did the Respondents OMSR Services Ltd or SVSV Services Ltd (this changed today – discussion with parties resulted in acceptance that the ET1 did talk about this issue as being Kaspars Port Talbot, which is the Third Respondent but key elements such as the link to the Equality Act 2010 was not pleaded in the ET1) do the following things: 6.2.1 From November 2023 to January 2024:6.2.1.1 reduce the Claimant’s hours, labelling the Claimant a troublemaker for learning

6.2.1.2 make unreasonable changes to the rota at the last minute including at night when

6.2.1.3 then shout at the Claimant for being late for shift;

6.2.1.4 rota the Claimant to clean until 2:30am;

6.2.1.5 require the Claimant to travel from Caerphilly to Port Talbot for a shift of just 4 6.3 By doing so, did it subject the Claimant to detriment? 6.4 If so, was it because the Claimant did a protected act? 6.5 Was it because the Respondent believed the Claimant had done, or might do, a protected act?

[7]Schedule 5 Employment Act 2002

7.1 When these proceedings were begun, was the Respondent in breach of its duty to give the Claimant a written statement of employment particulars or of a change to those particulars? OMSR Services Limited (this is where the employment started), SVSV Services Ltd (the Claimant was moved to here) and Mava Fast Foods Limited (this is where the Claimant was moved to next).

7.2 If the claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under section 38 of the Employment Act 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay.

7.3 Would it be just and equitable to award four weeks’ pay?

[8]Failure to provide itemised pay statements (Sections 8, 11, 12 Employment Rights Act 1996)8.1 Did the Respondent fail to provide to the Claimant at or before the time at which any payment of wages is paid to the Claimant, a written itemised pay statement? OMSR Services Limited (this is where the employment started), SVSV Services Ltd (the Claimant was moved to here) and Mava Fast Foods Limited (this is where the Claimant was moved to next).

8.2 If so, did the Respondent make any unnotified deductions from the pay of the Claimant in the period of 13 weeks immediately preceding the Claimant presenting his ET1 claim form?

8.3 If so, should the Tribunal order the Respondent to pay a sum not exceeding the aggregate of the unnotified deduction?” 3. The Legal Framework Employment Status / Identity of the Employer

3.1 The dispute in this case is not about whether the Claimants were employees; it is accepted they were employees of one or more entities. The dispute or uncertainty is about who they were employees of, and whether they had one employer or multiple employers.

3.2 In Clark v Harney Westwood & Riegels

[2021] IRLR 528

the Employment Appeal Tribunal [EAT] reviewed the case law authorities on the topic and summarised the following principles:

(a) Where the only relevant material to be considered is documentary, the question of whether a person, A, is employed by either B or C is a question of law. That situation is likely to be rare.

(b) Where (likely to be the case in most disputes) there is a mixture of documents and facts to consider; the question is a mixed question of fact and law and requires consideration of all the evidence.

(c) Any written agreement drawn up at the start of the relationship will be the starting point of any analysis. The Tribunal needs to inquire whether that agreement truly reflects the intentions of the parties. The observations of the Supreme Court in Autoclenz Ltd v Belncher

[2011] ICR 1157

are relevant here that the: “circumstances in which contracts relating to work or services are concluded are often very different from those in which commercial contracts between parties of equal bargaining power are agreed. I accept that, frequently, organisations which are offering work or requiring services to be provided by individuals are in a position to dictate the written terms which the other party has to accept. In practice, in this area of the law, it may be more common for a court or tribunal to have to investigate allegations that the written contract does not represent the actual terms agreed and the court or tribunal must be realistic and worldly wise when it does so… So the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement 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 the written agreement is only a part.”

(d) If the written agreement reflects the true intentions of the parties and points to B as being the employer, then any assertion that C was the employer will require consideration of whether there was a change from B to C at any point, and if so how. Was there, for example, a novation of the agreement resulting in C (or C and B) becoming the employer?

(e) In determining whether B or C was the employer; it may be relevant to consider whether the parties seamlessly and consistently acted throughout the relationship as if the employer was B and not C, as this could amount to evidence of what was initially agreed.

(f) Documents created separately from the written agreement without A’s knowledge and which purport to show that B rather C is the employer, should be viewed with caution. The primacy of the written agreement, entered into by the parties, would be seriously undermined if hidden or undisclosed material could readily be regarded as evidence of a different intention than that reflected in the agreement. It would be a rare case where a document about which a party has no knowledge could contain persuasive evidence of the intention of that party. Attaching weight to a document drawn up solely by one party without the other’s knowledge or agreement could risk concentrating too much weight on the private intentions of that party at the expense of discerning what was actually agreed. Equality Act 2010 – Protected Characteristics

3.3 Religion and belief is a protected characteristic under the Equality Act 2010. Under section 10, “Religion” is defined to be any religion including a lack of religion. “Belief” is defined as any religious or philosophical belief, again including a lack of belief.

3.4 Race is also a protected characteristic and is defined under section 9(1) as including colour, nationality and ethnic or national origins. It is further said that those who have or share characteristics of colour, nationality or ethnic or national origins can be described as belonging to a particular racial group. Under section 9(4) a racial group can be made up of two or more distinct racial groups. Nationality is generally concerned with citizenship, whereas national origin is concerned with a connection to a country or nation through birth.

3.5 In Mandla and anor v Dowell Lee and ors

1983 ICR 385

the Court of Appeal gave guidance about what might constitute an ethnic group. Two essential characteristics were identified as (a) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; and (b) a cultural tradition of its own, including family and social customs and manners. The Court also identified other characteristics that a group may share such as: (c) a common geographical origin or descent from a small number of common ancestors; (d) a common language, not necessarily peculiar to the group; (e) a common literature peculiar to the group; (f) a common religion different from that of neighbouring groups or from the general community surrounding it; and

(g) being a minority or being an oppressed or a dominant group within a larger community. There can be overlap between the protected characteristic of race and the protected characteristic of religion and belief. There is a body of case law that considers whether a group that shares a common religion attracts protection not only on the basis of religion and belief but also as an ethnic group; with differing results.

3.6 The protected characteristic of race is not expressly defined to include immigration status. Therefore discrimination on the basis of immigration status in itself with not amount to race discrimination. In Onu v Akwiwu and Taiwo v Olaigbe [2016] UKSC31 the Supreme Court rejected the argument that two migrant domestic workers who had been treated less favourably because of their vulnerable immigration status were subject to race discrimination. The Supreme Court held that immigration status could not be conflated with nationality. It was said that whilst immigration status is a function of nationality in that British nationals have a right to live and work in Britain, whereas non-British nationals are subject to immigration control; there is a wide variety of immigration statuses. Some nonBritish nationals are subject to greater restrictions than others. On the facts of the case it was the terms of those claimants’ Visas that made them particularly vulnerable because they were dependent on their employers for their continued right to live and work in Britain. The Supreme Court noted that Parliament could have chosen to include immigration status in the list of protected characteristics in the Equality Act but had not done so. The claimants in that case had not been treated as they were because they were Nigerians but because of their immigration status. If they had not been Nigerian but of a different nationality with the same immigration status, they would have been treated in the same way.

3.7 In Mruke v Khan

[2018] EWCA Civ 280

the Court of Appeal similarly rejected an argument that a migrant domestic worker’s social-economic status could be conflated with nationality. The respondent employer in that case might have recruited a person with similar social economic characteristics to the claimant but from a different country. Equality Act - Direct discrimination

3.8 Section 13(1) of the Equality Act provides: "(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."

3.9 Section 23(1) says that when comparing cases for the purposes of section 13 there must be no material difference between the circumstances relating to each case. That is why in cases such as Onu a comparison was being made between workers with different nationalities but who had the same immigration status.

3.10 Section 13 requires that two matters be established. The first is that there has been treatment of the particular claimant which is less favourable than the treatment that was meted out, or would have been meted out, to a comparator. The second is that the less favourable treatment was because of a protected characteristic.

3.11 In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

, the then House of Lords said it is often helpful to concentrate on the “reason why” question when considering a complaint of direct discrimination. Why did the alleged discriminator act as he did? What, consciously or unconsciously, was the alleged discriminator’s reason? This question is sometimes less legally complex than the task of identifying a comparator whose circumstances are materially the same, for the purposes of section 23, and the answer to it will often determine the claim.

3.12 In other cases it can be helpful to consider the "comparator" question. An actual comparator exists when there is a known, identified individual who does not have the protected characteristic, and there is no material difference between the circumstances relating to the claimant's case and the comparator's case. A tribunal may also consider how a hypothetical comparator in a similar (i.e. not materially different) position to the claimant, but who does not have the protected characteristic, would have been treated. A tribunal may also take account of the way in which the respondent treated other individuals who may be in more different situations but still have some similarities; often referred to as evidential (rather than statutory) comparators. The purpose is to use such comparators as an evidential tool to see whether an inference of discrimination is justified.

3.13 In order to satisfy the “because of” test, it is not necessary for the protected characteristic to be the whole of the reason, or even the principal reason, for the treatment. In Nagarajan v London Regional Transport

[1999] ICR 877

it was said: “Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others…If racial grounds…had a significant influence on the outcome, discrimination was made out.” Harassment related to a protected characteristic

3.14 Section 26 of the Equality Act defines harassment as: (1) A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B… (4) In deciding whether conduct has the effect referred to in subsection 1(b), each of the following must be taken into account – (a) the perception of B; (b) the circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

3.15 Conduct cannot be both harassment and direct discrimination by way of subjecting a person to detriment; see Section 212 Equality Act.

3.16 In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

the EAT set out a threestep test for establishing whether harassment has occurred: (a) was there unwanted conduct; (b) did it have the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them; and; (c) was it related to a protected characteristic.

3.17 It was also said that the tribunal must consider both whether the claimant considers themselves to have suffered the effect in question (the subjective question) and whether it was reasonable for the conduct to be regarded as having that effect (the objective question). The tribunal must also take into account all the other circumstances. The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for them, then it should not be found to have done so.

3.18 In Grant v HM Land Registry

[2011] IRLR 748

the Court of Appeal reiterated that when assessing the effect of a remark, the context in which it is given is highly material. A tribunal should not cheapen the significance of the words “intimidating, hostile, degrading, humiliating or offensive” as they are an important control to prevent trivial acts causing minor upset being caught up in the concept of harassment. The Court of Appeal also said: “It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable.” In Betsi Cadwaladr University Health Board v Hughes [2014]

UKEAT/0179/13

it was also said by the EAT: “The word violating is a strong word. Offending against dignity; hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence.”

3.19 The phrase “related to” a protected characteristic in a harassment complaint is a different, broader test from whether the conduct is “because of” a protected characteristic in a direct discrimination complaint. But it does have its limits. The conduct complained about must still relate to the protected characteristic; which is a matter for the tribunal to determine based on all the facts as found. It was said in Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and Heads

UKEAT/0039/19

the “related to” test may be satisfied by looking at the motivation of the individuals concerned but it is not the necessary or only possible route. It was also said: “Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be.” Victimisation

3.20 Section 27 of the Equality Act 2010 provides: “27 Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.”

3.21 A protected act involves bringing proceedings under the Equality Act, or giving evidence or information in connection with such proceedings, or doing any other thing for the purposes of or in connection with the Equality Act, or making an allegation (whether or not express) that a person has contravened the Equality Act.

3.22 Whether treatment is a “detriment” is established by asking whether the treatment is of a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment. It is not necessary to establish any physical or economic consequence. There must be a link between the protected act and the detriment; the claimant must be subjected to a detriment because the claimant did the protected act. Here the tribunal has to ask itself whether the protected act had a significant influence on the outcome. This does not mean it necessarily has to be the main or principal cause. Again this “reason why” analysis involves an examination of the mental processes, conscious or unconscious of the decision maker in question. It is not a “but for” test. Burden of Proof under the Equality Act 2010

3.23 The Equality Act provides for a shifting burden of proof. Section 136 so far as material provides: “(2) if there are facts from which the Court (which includes a Tribunal) could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

3.24 Consequently, it is for a claimant to prove facts from which the tribunal could infer (absent explanation from the respondent) that discrimination has taken place. If such facts have been made out to the tribunal’s satisfaction, applying the balance of probabilities, the second stage is engaged. At the second stage the burden shifts to the respondent to prove, again on the balance of probabilities, that the treatment in question was “in no sense whatsoever” because of the prohibited reason / that the protected characteristic was not a ground for the treatment in question. A tribunal would normally expect cogent evidence to discharge that burden of proof.

3.25 In Hewage v Grampian Health Board

[2012] IRLR 870

the Supreme Court approved guidance previously given by the Court of Appeal on how the burden of proof provisions should apply. That guidance appears in Igen Limited v Wong

[2005] ICR 931

, as supplemented in Madarassy v Nomura International Plc

[2007] ICR 867

. Here it is important to note that although the concept of the shifting burden of proof involves that two-stage process, the analysis should only be conducted once the tribunal has heard all the evidence.

3.26 Further, as to what is required to discharge the burden at the first stage; it was said it must be something more than a difference in protected characteristic and a difference in treatment. It was said that the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

3.27 It has also been held to be an error of law to draw an automatic inference from the failure by a respondent to provide information or documents; D'Silva v NATFHE

[2008] IRLR 412

. It is necessary in each case to consider whether in the particular circumstances of the case the failure is capable of constituting evidence supporting the inference that the respondent acted discriminatorily in the manner alleged.

3.28 It is also an error to draw an inference without having regard to the totality of the relevant circumstances; Talbot v Costain Oil

UKEAT/0283/16

. For example, if there are multiple examples of different treatment between those of different status it is unlikely to be a case where it can be said that there is mere difference of status and treatment.

3.29 It is not necessarily an error of law for a tribunal to effectively assume the burden has shifted and look to the respondent to provide an explanation for the treatment in question. It was said in Hewage that the burden of proof provision may have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another. But the burden of proof provisions do require careful attention where there is room for doubt as to the facts necessary to establish discrimination; see Field v Steve Pye &Co

[2022] EAT 68

and the important guidance there at paragraph 41 onwards.

3.30 In Raj v Capita Business Services Ltd

[2019] UKEAT 74

19 2006 the EAT confirmed that the burden of proof provisions in a harassment claim mean that it is for the claimant to establish facts such that, absent any other explanation for it, the tribunal could conclude that the conduct was related to the protected characteristic. The burden then shifts to the respondent to show that it was not in fact so related. It was also said: “I am doubtful that establishing unwanted conduct that had a prohibited effect could ever of itself give rise to a prima facie case that the conduct was related to a protected characteristic and in any event, I am quite satisfied that it did not do so in these circumstances.” Equality Act - Constructive Discriminatory Dismissal

3.31 Section 39 Equality Act prohibits discrimination in employment by employers. Section 39(2) lists the ways in which an employer must not discriminate against an employee, and these including by “dismissing” the employee. Under section 39(7)(b) this includes terminating B’s employment by an act of B (including giving notice) in circumstances such that B is entitled, because of A’s conduct, to terminate the employment without notice. This means that dismissal includes a constructive dismissal. Western Excavating (ECC) Ltd v Sharp

[1978] IRLR 27

set out the elements which must be established by the employee in constructive dismissal cases. The employee must show: (a) that there was a fundamental breach of contract on the part of the employer; (b) that the employer’s breach caused the employee to resign (in the sense of having played a part); and (c) that the employee did not affirm the contract, for example by delaying too long before resigning. A breach of contract can include the implied term of trust and confidence. The implied term was explained by the House of Lords in Malik v Bank of Credit and Commerce International SA

1997 ICR 606

, HL as a term to the effect that neither party will, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. If discriminatory matters found sufficiently influence an overall repudiatory breach it will render a constructive dismissal discriminatory; De Lacey v Wechseln Limited t/a The Andrew Hill Salon

[2021] IRLR 547

. Equality Act - Liability of named individual Respondents

3.32 Under section 109(1) anything done by an employee in the course of their employment must be treated as also done by the employer. This means an employer will be liable for discriminatory acts of their employees unless under section 109(4) they show they took all reasonable steps to prevent the conduct. Under section 109(2) anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal and the principal will be liable. Under section 109(3) it does not matter if the thing is done with the employer’s or principal’s knowledge or approval. Where the liability of principal and agent is engaged (in contrast to the employer/employee relationship), there is no “reasonable steps” defence.

3.33 Under section 110, where under section 109 an employer or principal has been treated as having done something discriminatory by their employee or agent, in turn, that employee or agent is also in contravention of the Equality Act and will be personally liable. There are some limited exceptions set out in section 109. Equality Act – Relationships which have ended

3.34 Section 108 prohibits discrimination in certain circumstances where a relationship has ended. A person, A, must not discriminated against another, B, if the discrimination arises out of or is closely connected to a relationship which used to exist between them and the conduct would, if it had occurred during the relationship, contravene the Equality Act. Section 108(2) provides similar protection in respect of harassment. Equality Act – job applicants

3.35 Section 39 of the Equality Act also provides protection for job applicants in terms of the arrangements made for deciding to whom to offer employment or the terms on which employment is offered. Holiday Pay under the Working Time Regulations

3.36 Regulation 12 of the Working Time Regulations 1998 (“WTR”) provides that a worker is entitled to four weeks’ annual leave in each leave year. The Regulation also states that leave may only be taken in the leave year in respect of which it is due and it may not be replaced by a payment in lieu except where the worker’s employment is terminated (although there can be exceptions to this). An additional 1.6 weeks’ annual leave is granted under Regulation 13A of the WTR.

3.37 Regulation 16 of the WTR deals with payment for annual leave and provides that a worker is entitled to be paid in respect of any period of annual leave to which he is entitled under regulation 13 and regulation 13A at the rate of a week’s pay in respect of each week of leave. Sections 221 to 224 of the Employment Rights Act 1996 apply for the purpose of determining the amount of a week’s pay for the purposes of this regulation. The WTR also make provision how to calculate the payment in lieu that is due on termination where the individual is part way through their holiday year.

3.38 A worker can bring a claim in the employment tribunal where the employer has refused to permit the worker to exercise their right to statutory leave under Regulation 13 or 13A or has failed to pay then all or part of holiday pay due when taken (Regulation 16), or pay in lieu of untaken holiday due on termination (Regulation 14). Unauthorised deduction from wages

3.39 Part II of the Employment Rights Act 1996 (ERA) sets out the statutory prohibitions on deductions from wages. Section 13(1) contains the general prohibition as follows: “(1) An employer shall not make a deduction from wages of a worker employed by him unless – (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction… (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of wages properly payable by him to the worker on that occasion (after deductions,) the amount of the deficiency shall be treated for the purposes of [Protection of Wages] as a deduction made by the employer from the worker’s wages on that occasion.”

3.40 Section 15 ERA similarly provides for a right against having to make payments to an employer. An employer shall not receive a payment from a worker employed by him unless the payment is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or the worker has previously signified in writing his agreement or consent to the making of the payment.

3.41 “Wages” means any sums payable to a worker in connection with their employment, including any fee, bonus, commission, holiday pay or other emolument referable to their employment, whether payable under their contract or otherwise (section 27 of the ERA). Failure to provided itemised pay statements

3.42 All employees have a right to be given written payslips under section 8 ERA 1996. This states: “A worker has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement.”

3.43 Section 8(2) of the ERA provides what particulars must be included in that itemised pay statement.

3.44 By section 11 of the ERA provides a worker may bring a claim to an Employment Tribunal if an employer has failed to comply with section 8 in providing an itemised wage statement and the worker may seek a determination of what particulars ought to have been given. Section 12(4) ERA 1998 provides that where the Tribunal finds that any unnotified deductions have been made from pay during the period of thirteen weeks immediately preceding the date of the application (whether or not the deductions were made in breach of the contract of employment), the Tribunal may order the employer to pay a sum not exceeding the aggregate of the unnotified deductions so made Schedule 5 Employment Act 2022 - Written Statement of Particulars

3.45 Section 1(1) ERA requires an employer to provide each of its workers with a written statement of employment particulars containing certain information which is detailed at sections 1(3) and 1(4) ERA. The statement must be provided no later than the start of the employment (section 1(2)(b) ERA).

3.46 Where a tribunal finds in favour of a worker in a claim to which Schedule 5 Employment Act 2002 applies, it must make an additional award to the claimant of two weeks' pay (and may increase that to four weeks' pay) if, when the proceedings began, the employer was in breach of s1(1) ERA. 4. Findings of fact Approach to reaching findings of fact and decision on the issues in the case

4.1 It is not necessary for me to decide every issue in dispute in this case; only those necessary for me to decide the points before me in the List of Issues. Where there is a dispute I reach my conclusions applying the balance of probabilities.

4.2 I need also to say something about my decision making in terms of findings of fact and then the ensuing Discussion and Conclusions below in terms of the approach taken to the cross examination of witnesses. There were a multitude of allegations brought against a variety of Respondents and not all brought in the same way (for example, not all complaints were brought as both direct race and religion/belief discrimination and harassment related to race and religion/belief). There was a limited amount of time that could be spent with each witness, even when SK was giving evidence for multiple days. Each representative had their own approach. The Respondent’s professional representative largely focused on challenging the Claimants on the nub of the allegation in the list of issues. There was less focus on the detail in all of the documents in the bundle (though some were looked at). There was very little challenge to the very detailed factual narrative in the Claimants’ witness statements. The Claimants’ lay representative is not a professional representative. Her focus was more on exploring the detail of the documents in the bundle with the witnesses, particularly SK. There are advantages and disadvantages to both approaches, but it would not have been possible within the hearing window of this case to cover everything in cross examination whether by a professional advocate or not.

4.3 Where a party is not professionally represented it is sometimes possible as a Judge, particularly in simpler cases, to remind the lay representative about aspects of the List of Issues that have not been covered in cross examination. In a case such as this one it simply was not possible for me to take on that task because the allegations were so wide ranging even just within the List of Issues. Instead the Claimant’s representative was reminded of the need to cover and ask challenge questions about all of the matters covered in the List of Issues. There was time available to the Claimants to review and check that. There were some matters which had jumped out to me that I did also ask some questions about, but as just stated the Claimants’ ultimately had responsibility for ensuring that questions were asked about the complaints they were pursuing. The overall result of the above was that not everything was raised by both parties in cross examination, whether that be the nub of all allegations, or the detail of documents or the contents of witness statements, and that it something that I have to bear in mind in my decision making. Albeit, as I have said, it would not have been possible even if both parties had professional representation (and they did not) to cover everything.

4.4 In P2CG Limited v Davis EA-2019-000762-AT the EAT reviewed the law relating to what is termed the “rule in Browne v Dunn” ((1894 R 67 (UKHL)) about, if a party in litigation is impeaching the credibility of a witness on a matter, that witness being given the opportunity to give an explanation for it. In Williams v Solicitors Regulation Authority

[2017] EWHC 1478

it was said that this rule is not an absolute or inflexible one and it is always a question of fact and degree in the circumstances of the case so as to achieve fairness between the parties. It was noted that civil litigation procedures have moved on considerably since the 19th century, with witnesses now having the full opportunity to give their evidence by way of witness statement served in advance, and then verified under oath in the witness box.

4.5 In NHS Trust Development Authority v Saiger & Others [2018] ICR and Howlett v Davis

[2018] 1WLR 948

, it was said in effect that the principle should usually apply to allegations of dishonesty, but that ultimately what fairness requires will depend on the individual circumstances. In Howlett it was said that what ultimately matters is whether the witness had fair notice of a challenge to his honesty and an opportunity deal with it. In Chen v Ng

[2017] UKPC 27

it was said by the Privy Council: “In a perfect world, any ground for doubting the evidence of a witness ought to be put to him, and a judge should only rely on a ground for disbelieving a witness which that witness has had the opportunity of explaining. However, the world is not perfect, and, while both points remain ideals which should always be in the minds of cross-examiners and trial judges, they cannot be absolute requirements in every case. Even in a very full trial, it may often be disproportionate and unrealistic to expect a cross-examiner to put every possible reason for disbelieving a witness to that witness, especially in a complex case, and it may be particularly difficult to do so in a case such as this, where the Judge sensibly rationed the time for crossexamination and the witness concerned needed an interpreter. Once it is accepted that not every point may be put, it is inevitable that there will be cases where a point which strikes the judge as significant reason for disbelieving some evidence when he comes to give judgment, has not been put to the witness who gave it… Specific factors to be taken into account would include the importance of the relevant issue both absolutely and in the context of the case; the closeness of the grounds to the points which were put to the witness; the reasonableness of the grounds not having been put, including the amount of time available for crossexamination and the amount of material to be put to the witness; whether the ground had been raised or touched on in speeches to the court, witness statements or other relevant places; and, in some cases, the plausibility of the notion that the witness might satisfactorily answered the grounds.” Introduction to the parties

4.6 The Respondent entities operate various food franchise businesses: Shivaay Fast Foods Limited t/a Noodlebox in Cardiff [R1], OMSR Services Ltd t/a Pepe’s Port Talbot [R2], SVSV Services Ltd t/a Kaspa’s Port Talbot [R3], and Mava Fast Food Ltd t/a Pepes Caerphilly [R4]. Noodlebox as I understand it provides Asian cuisine. The Pepe’s franchise focuses on piri piri chicken. The Kaspa’s franchise focusses on desserts.

4.7 It is not in dispute that SK [R5] is the guiding mind and hand behind these businesses, even if he is not a registered director for all of them. VK [R5] is a director of R4 (Pepe’s Caerphilly). One central question in this litigation is which limited company or companies employed the Claimants. The Respondents argue that C1 was employed throughout by R1 (Noodlebox, Cardiff) but that C1 also worked some additional hours for R2 (Pepe’s Port Talbot) and R4 (Pepe’s Caerphilly). The Respondents argue that C2 was employed by R3 throughout (Pepe’s Port Talbot). These assertions are not agreed by the Claimants.

4.8 The Claimants are brothers and are Indian. They are Hindu. Their first language is Telegu; one of the official Indian languages. To quote C1: “Being Telegu is more than just speaking the language, our community has strong believes on values like respect, kindness, being a responsible person, having devotion to family and our traditions… Our Telegu customs and beliefs further support what we believe as Hindus about having a moral responsibility to act in the right way and make choices that are helpful to all.” C1 and C2 also explain in their evidence that within their community and within India in general there is a great deal of importance on young people studying in the UK, US, or Australia and that they would not be considered “successful” unless they did this. They explain that culturally there is always a lot of pressure on parents from relatives and the wider community to send their sons abroad, because this perceived success means that their male children will be considered a more suitable person for marriage.

4.9 C1 is the younger brother. C1’s parents wanted him to come to the UK. He initially came to the UK on a Student Visa to study for a Masters at Cardiff Met University. C1 worked part time in Pepe’s Cardiff, an establishment which is part of the Pepe’s franchise but is not connected at all to any of the Respondent’s in this case; it is run by an entirely different franchisee. After C1 completed his Masters, C1 applied for a Post Study Work Visa which would allow him to stay in the UK for a further two years and work full time. By July 2022 C1 had progressed to having some supervisory responsibilities in Pepe’s Cardiff. C1’s parents had taken out a mortgage to fund him initially coming to the UK. Throughout his time working as student and then under his Post Study Work Visa C1 had been working and sending money to cover his parents’ loan repayments. C1 was working under this Post Study Work Visa when he first met SK. To stay working in the UK in the longer term he would need a different Visa, such as a Skilled Worker Visa. That was not on offer at Pepe’s Cardiff.

4.10 C2 at this point was living and working in India. As I come on to later, he later joined C1 in the UK arriving under a Skilled Worker Visa. C1’s initial engagement and move to Port Talbot

4.11 When working in Pepe’s Cardiff C1 got to know a Mr Sandeep Reddy Mal Reddy and learned that Mr Reddy owned a business across the road called Noodlebox. In June 2022 Mr Reddy approached C1 about working for him and his business partner, SK. Mr Reddy put the Claimant in touch with SK. There is a dispute about whether this was with a view to C1 working in Noodlebox or whether it was to be for a new Pepe’s franchise that Mr Reddy and SK were planning on opening.

4.12 C1 first contacted SK by whats app on 3 July 2022 [352]. His message starts “Hi Anna” and many of his messages since use the name “Anna.” “Anna” means elder brother in Telegu and is a respectful title or form of address used for an older male. SK is saved in C1’s phone (as shown in the whats app messages) as “Siva Anna Pepe’s.” C1 said in his whats app of 3 July that Mr Reddy had asked C1 to call SK, that Mr Reddy had asked C1 to look at the store, and asking SK when SK was free to meet. SK’s oral evidence was that he first met C1 on 3 July in Noodlebox, where C1 talked about his background. I do not know whether C1 agrees with this, because it was not put to him when he gave evidence which was before SK’s oral evidence when SK said this.

4.13 It is, however, agreed that on 13 July 2022 C1 and SK met in Noodlebox and that either that day or the next day that SK made an offer of work to C1 and an offer to sponsor C1 under a Skilled Worker Visa. There is a dispute about which establishment SK offered the Claimant work for and where C1 then worked. SK says it was Noodlebox. C1 says it was for a new Pepe’s franchise in Port Talbot. I will return to my finding of fact on this key point below once I have summarised the relevant evidence (and disputes in that evidence) about where C1 ended up working, because my finding on this point depends on an evaluation of the whole evidential picture.

4.14 C1 says that SK asked C1 about his Visa. C1 says he explained that he was in a Post Study Work Visa with about 15 months remaining. C1 says SK suggested it may be possible for C1 to switch to a Skilled Worker Visa, and as a way to obtain indefinite leave to remain. C1 says SK asked C1 to join him at the new Pepe’s he was opening in Port Talbot, that SK also spoke about SK’s plans to grow his franchises, and that if C1 joined SK then SK would include C1 in shares in his next business project. C1 says that as SK was an elder male and also Telegu and Hindu their customs meant that C1 should treat SK as a respected elder, and C1 says he immediately trusted SK. C1 says he admired SK who had already achieved UK citizenship, and he believed he could learn from SK and follow in SK’s footsteps.

4.15 C1 says that SK told C1 that he would need to send various documents and pieces of information to apply for the Skilled Worker Visa, and that they would have to travel to London to arrange it. C1 says that SK asked what C1’s pay was at Pepe’s Cardiff and C1 told SK it was £12 an hour. C1 says that SK told him that while the business got up and running he could pay £10 an hour, but would later pay the same as C1 was on then at Pepe’s Cardiff. C1 says he explained to SK that he would not be able to bear all the Visa costs at once and bearing in mind he had paid around £1800 for his Post Study Work Visa and NHS fees less than 12 months before. C1 says that SK told C1 to arrange what C1 could and they agreed that C1 would pay £2000 on or around 24 or 25 July 2022. C1 says that SK said that SK would take care of the rest and would deduct the remainder from C1’s wages in instalments once C1 started work at Pepe’s Port Talbot. C1 says that they did not discuss a specific figure for instalments, but he was not expecting that the excess would be very much.

4.16 SK said in cross examination/clarifications questions from me that when he met C1 in Noodlebox on 13 July, SK told C1 that he was happy to give C1 sponsorship at Noodlebox (Shivaay), working as a head chef, and that he asked C1 to send him the documents needed for the Certificate of Sponsorship. SK says he told C1 that the job paid a salary of £30,000 a year working 40 hours a week. SK said that at that time he thought that C1 could not start work at Noodlebox/Shivaay until the Skilled Worker Visa came through. SK said that on 14 July he had a phone conversation with C1 about documents for the Visa application, and that in that conversation C1 (who had learned from Mr Reddy about the plans to open Pepe’s Port Talbot) asked if he could work at Pepe’s Port Talbot too. SK said he told C1 that he would have a look at that and get back to C1. SK said that he then offered C1 some additional work in Pepe’s Port Talbot some time between 20 and 28 July 2022. SK said in oral evidence that he told C1 that C1’s work at Pepe’s Port Talbot would have to be below 20 hours a week because C1 was applying for the Skilled Worker Visa, and that he offered C1 that additional work at Pepe’s Port Talbot as a grill chef at £9.50 an hour. Again, I return to this dispute in evidence further below.

4.17 The whats app messages in the bundle show SK telling C1 on 14 July 2022 to send all the documents. On 21 July 2022 SK sent C1 SK’s bank account details. They show on 26 July SK asking if C1 had transferred the amount, C1 saying he had not, would transfer it tomorrow morning, and would do £2000 for now. They then show C1 transferring £2000 to SK’s account on 27 July 2022 [358]. SK then sent C1 a list of documents that were needed in readiness for a meeting with an Immigration Consultant arranged for 28 July 2022.

4.18 On 28 July C1 and SK went to meet with the Immigration Consultant, Mr Dhruv Patel, from Universal Immigrations Ltd, with C1 taking his documents with him. C1 says that SK told him that C1 did not need to worry about the process and just needed to be present for biometrics. C1 says that he did not get any emails from UK Visa & Immigrations and all he received about his application were screenshots from SK confirming his application was in. C1 says that at the time he was not told which company was applying for his Certificate of Sponsorship and just understood that it was SK who was sponsoring him. I think it is likely that C1 received little paperwork at the time because much later on C1’s representative made a subject access request to Universal Immigrations Ltd for C1’s data/paperwork and the response did not produce much.

4.19 C1 says he did not see it until January 2023, but there is a Certificate of Sponsorship for him with an application date of 28 July 2022 as a Skilled Worker. The sponsor’s name is Shivaay Fast Foods Limited (i.e. R1/Noodlebox) and gives a work start date of 15 August 2022 and end date of 15 August 2024. The weekly hours of work are 40. The given title is head chef at a salary of £30,000. A PAYE reference number is given. The fee recorded is £1219.

4.20 On 29 July 2022 C1 was set up on the national Pepe’s training portal [359]. C1 says it took about 3 days to do the franchise training.

4.21 C1 says that SK then told C1 that C1 should move from Cardiff to Port Talbot because C1 would have additional responsibilities to receive stock and take care of other local store responsibilities. C1 says that SK said that C1 should share a house with another colleague, Sai Prasad, and that SK would be guarantor on the rental. C1 says that he did not really want to move to Port Talbot, but felt he had no option other than to agree because he thought it would help him with his future and because SK was his sponsor he wanted to respect SK’s wishes. The bundle shows the property agent sending the guarantor agreement through to all involved (including C1) on 1 August 2022 and SK signing it off on 2 August and 9 August 2022. Within the emails about the rental property SK spoke about the plan to get a sponsorship license from OMSR Services Ltd for Sai Prasad.

4.22 SK said in evidence that it was C1’s decision to move to Port Talbot because the rent was lower than Cardiff, and that he did not advise or encourage C1 to relocate or provide accommodation for C1 or any employee. He said that C1 wanted to moved there with friends and asked SK to be guarantor. Again, I will return to this dispute in evidence below.

4.23 C1 says that around this time SK told him that the total Visa cost would be £6090 and that while it crossed C1’s mind it was a lot more than his previous Post Study Work Visa, he accepted that this must be the true cost because he had no reason to doubt SK, and also he was conscious it may lead to him getting indefinite leave to remain in the longer term. C1 says that SK told him that C1 would pay the remaining £4090 in instalments in August, September and October 2022.

4.24 SK said in evidence that C1’s Visa costs were around £4000 made up of £1800 NHS fees, £800 for the Immigration Advisor’s fees and then around £1400 for the Visa fees. SK has not disclosed any documents about this. SK said that C1 at the time promised to pay off the balance of what SK had spent for the Visa costs within 3 months.

4.25 On 3 August 2022 C1 sent SK a further £500 [see [360]], saying he would do the remaining on Friday. C1 did not in fact then make a further payment on the Friday. C1 says he could not as he did not have the money. Setting up of Pepe’s Port Talbot and the Sacred Space

4.26 Pepe’s Port Talbot opened on 11 August 2022. C1 says that prior to this he worked a few days as part of setting up the store, as well as the 3 days’ online training. SK accepts that C1 started working at Pepe’s on 10 August 2022 to help set up the store and that C1 then worked a shift on the 11 August 2022. SK said that after that he could not really remember C1’s hours but once C1 started at Noodlebox, that C1 was working full time at Noodlebox, and additional hours at Pepe’s Port Talbot were arranged around this. C1 disputes this.

4.27 In paragraph 24 of his witness statement C1 says: “Before the opening day of Pepe’s Port Talbot, Siva brought Hindu priests to the store and performed a Puja (prayer to Hindu Gods & Goddesses) which is a very common practice in Hindu Households and businesses in India, to bring prosperity and good fortune. I did feel a bit uncomfortable, as Hinduism has strong traditions of vegetarianism and it was a Chicken shop, so it didn’t feel right. I also didn’t really think we should be bringing our religion into work. But as a Hindu who is of the Telegu community. Our people are very proud to be Hindu and very pro Hindu, I felt this was Siva’s way of showing staff he is a good Hindu.” In cross examination C1 said he did not like this or the sacred space. C1 never raised his concerns with SK.

4.28 SK said in evidence that it is not correct that all Hindus are traditionally vegetarian and that the majority of employees eat non vegetarian food on a regular basis. SK said as a custom tradition they did light candles and Dhoop sticks as a custom tradition which most Hindus follow. SK says “We believe that the divine god photos will have a positive and peaceful atmosphere within the shop, fostering a sense of contentment and well-being. We do pooja (rituals) at shop every week and this is a most common practice.” SK said that it was not disrespectful to religion and belief and there are special occasions where Hindus over non vegetables to the god. SK said that no concerns or objections about the sacred space were brought to him. Initial payments to C1 and discussions about them

4.29 On 22 August 2022 the Claimant received a payment of £500 from OMSR Services (i.e. R2/ Pepe’s Port Talbot) [513] into his bank account which he says he requested from SK to pay towards the security deposit and house rent. On 22 August 2022 C1 also signed a new employee form with OMSR Services Ltd Trading as Pepes Piri Piri [205]. That cites an employment start date of 11 August 2022. It records C1 as living at an address in Port Talbot.

4.30 C1 says that on 25 August 2022 he received his new BRP card by courier which said Skilled Worker Visa, but it did not give any details of his employer. C1 says that by this time he was working at Pepe’s Port Talbot full time. As already stated, SK disputes that C1 was working there full time. SK stated in evidence that C1 started working at Noodlebox on 25 August 2022 once the Visa had come through, initially doing some training. SK said that by September 2022 C1 was working 40 hours a week at Noodlebox. SK said Noodlebox was open 7 days a week and so C1 and another Head Chef worked different days/hours between them.

4.31 On 30 August SK sent a whats app chasing a transfer of £500 [363]. C1 says that he borrowed £500 cash from two friends and gave it to SK in person. This was for the Visa fees. By this time C1 says he had paid SK £3000. SK disputes receipt of this cash payment, stating that for Visa fees reimbursement he only received £2500 (the £2000 and then £500 earlier transfer) and that everything else remained outstanding when C1 left employment. Again I return to this Visa repayment dispute later.

4.32 On 3 September 2022 C1 then received a further £1080 into his bank account from OMSR [513]. There is no payslip for this payment.

4.33 SK’s evidence was that in general the hours that staff work are recorded onto sheets. He said that he also keeps an excel spreadsheet of hours worked by staff that he gives to his accountant who prepares the payslips. SK said that C1’s hours worked at Noodlebox would have been recorded onto sheets. These sheets recording hours worked or SK’s own excel spreadsheet have not been disclosed. SK said that the hours of work were also recorded at OMSR. Again none of those records have been disclosed, despite the fact it has been clear in this litigation from the very start that there is a central dispute as to where C1 was working.

4.34 SK also said that he did not send C1’s details to the accountant until March 2023, at least for OMSR. SK said as C1 was starting in Noodlebox he thought that he would start C1 on the payroll when C1’s Visa came through. SK said in August 2022 he then did not give C1’s details to the accountant because he was busy with the new business in Port Talbot. SK said that in September he spoke to the accountant, and said that they had the Visa and that C1 was going to work at Noodlebox and also Pepe’s Port Talbot/OMSR. SK says the accountant’s advice was to add C1 to the payroll the next month, and that the accountant was going to look into it, and then it got overlooked by them both. SK said that all other staff’s information was being sent to the accountant, other than C1.

4.35 SK said that in the meantime C1 was being paid cash and that on most occasions he asked C1 to sign a cash voucher. SK said the calculation of the amounts paid to C1 were on his excel spreadsheets that he had not disclosed in this litigation. I asked SK how he calculated the tax and national insurance payable on the cash payments to C1. I found SK’s evidence on that point confusing. SK initially said he asked his accountant. When I asked whether the accountant had not advised that employees needed to be paid through the payroll, SK then said he did not speak to the accountant but to one of the accountant’s assistants who gave him the calculation. I then asked SK how he paid the correct net sum to C1 because after deductions people are not normally left with a nice round figure but pounds and pence. SK then said he did not do any deductions for OMSR at the time but paid C1 gross. Hence SK said the £1080 paid to C1 mentioned above was for 108 hours worked in August 2022 at £10 an hour. (Why from the Respondents’ perspective it was £10 an hour and not £9.50 I do not know).

4.36 SK accepted in oral evidence that he had never given C1 a contract of employment/ statement of particulars of employment for C1’s work at Pepe’s Port Talbot/ OMSR. SK said that this was an administrative error and all other staff at OMSR had a written contract. SK also accepts that there was a failure to pay C1 holiday pay at OMSR.

4.37 SK said in oral evidence that with Noodlebox (Shivaay) C1 was on the payroll but that initially payments were made by cash. SK says that C1’s net pay for August 2022 was £190.00 given C1 only worked the last part of the month. SK said the figure was calculated by the accountant. C1 denies working at Noodlebox or receiving that payment. It was put to SK in cross examination that £190.00 could not be correct because it would be paying C1 at £9.50 an hour and not the rate of C1’s salary (pro rated for the proportion of the month worked) at Noodlebox. SK said that must have been an error.

4.38 For September 2022 (payable at the start of October 2022) SK said that C1 was paid cash of a net payment of £2307.61 as C1’s salary at Noodlebox. C1 denies working there or receiving this money. SK says that C1 was also paid £171 in cash from Pepe’s Port Talbot/OMSR and that this was a gross sum of 18 hours worked at £9.50 an hour. SK also said in oral evidence that he now thought that C1 had been underpaid at OMSR and that C1 would have worked more than 18 hours that month. In closing submissions the document that was handed up asserts that C1 worked 64 hours at OMSR that month with an underpayment of £437. That figure/calculation is not supported by any evidence (it being handed up in closing submissions) and is not agreed by C1. C1 says that his September’s pay was not any of the figures put forward by SK, but instead he was given a cash payment of £1080 on 5 October 2022. C1’s bank statements show him paying that sum of cash into his bank account on that date.

4.39 On 3 October 2022 C1 messaged SK saying he had not been paid for September. SK replied to say: “Kishore I need to transfer from Shivaay for you this month”; “Will transfer from that”; “Will get it today or tomorrow”; and “Waiting for your final pay slip from accountant.” SK also asked C1 to call him [810].

4.40 C1 says he spoke with SK and asked SK why he was being paid in cash and not into his bank account, and also he thought he was being underpaid because he had done more hours than the pay he received. C1 says that SK pulled up a spreadsheet and told C1 that tax, employee NI, employer NI and VAT were all being deducted which was a total of £974. SK sent C1 the spreadsheet. It has columns for March 2022 through to February 2023. Under each monthly column there is a figure for basic pay of £2500. (The yearly value for that would therefore be £30,000.) Each column then has entries for tax, employee NI, employer NI, and VAT for the months of March, April, May, June and July 2022 [365] which show total deductions for April, May, June and July 2022 of £974 (although of course the Claimant was not working for any of SK’s companies in the earlier months). C1 says that he did not understand at the time that there could be a question of which company was paying him because he considered SK to be his sponsor. He says he did not know the rules about companies and pay and trusted and relied on SK. He says he did feel shocked to hear he was losing all that money on taxes and VAT, but when he spoke with colleagues they were being paid the same amount of deductions so he thought it was normal for a Skilled Worker Visa.

4.41 SK, in oral evidence, accepted they had a conversation about pay. SK’s evidence was that he had said he did not know the exact amount C1 would be paid because SK was waiting for the payslip from the accountant and that he explained in general there would be deductions for tax and employee national insurance under PAYE. SK said that C1 had phoned SK again to ask for the details. SK said in evidence that he did not have all the details for C1 and so had sent the screenshot to C1, but it was just SK’s general writing about revenues and expenses and VAT on business sales and his own budgeting. He said the figures, including the figure of £974, did not actually relate to C1 or employees at all. Again I return to this dispute below.

4.42 C1 messaged SK on 4 October 2022 asking if his payslip came through [366] and SK said he needed to speak to “them” that day; presumably a reference to the accountant.

4.43 On 4 October 2022 SK also messaged C1 to say: “as per your commitment by Aug, Sep, oct you will finish but now we are looking long time.” C1 replied to say “Yes anna I’m bit struggling at the moment I need some more time please.” SK said “Ok Kishore I will update you by today as we can extend till December to finish the full. You can understand that this is a new company and Shivaay is not much in terms of revenue.” The reference to a “new company” can only be to OMSR (Pepe’s Port Talbot) because Shivaay (Noodlebox) was not a new business. The commitment that SK was referring to was the repayment of the balance of the Visa costs which C1 was struggling to repay, hence SK stating he was extending the repayment period.

4.44 C1 decided to see if he could apply for a refund for the unused part of his Post Study Work Visa. To do so he needed his Certificate of Sponsorship details. He asked SK who put C1 in touch with Mr Patel from Universal Immigrations.

4.45 On 12 October 2022 C1 chased SK for his payslip again [369]. C1 chased it again on 20 October 2022 [370]. SK replied to say he got the consolidated one from the accountant last time, and that he forgot to request it from the accountant, and C1 should remind SK in the morning [370]. On 31 October 2022 C1 chased his payslip again [371].

4.46 By 7 November 2022 C1 had not been paid for October 2022 and so asked SK about his pay [372]. SK replied to say he needed to talk to C1 the next day. C1 says that SK then told him that he would not be receiving any pay for October 2022 because all the pay left after taxes and deductions would be put towards the Visa cost instalment. C1 says that this left him broke and he had rent and bills to pay and that he asked SK to lend him some money but SK did not do so. C1 says he asked SK about the previously promised pay rise, but SK said that C1 needed to give him more. C1 says that he was working 40 hours a week at the time but asked SK to give him more hours. C1 says SK said he would see what he could do but that things were not good for the business at that time.

4.47 SK does not accept that C1 did not receive any October 2022 pay. SK says that C1 was paid his net salary of £2307.61 by Noodlebox/Shivaay. SK’s witness statement says that C1 also received £171 for hours worked at OMSR, but again said orally that this figure may be incorrect. The figure in the document handed up in closing argument (not agreed by C1) asserts that C1 worked 72 hours at OMSR and is owed a shortfall in pay of £513.00 for the month.

4.48 [373] in the bundle is a whats app exchange between C1 and SK on 21 November 2022, where C1 asked why he had a 6pm shift start time rather than 12, saying: “If I don’t get enough hours how can I repay the amount.” SK replied to say: “We are the very worst last week so looking after that and today is very rainy until 4pm.” SK also said that: “last week you are the highest Kishore almost 50 [hours].” SK also wrote: “Also hours are nothing to do with the repay.” C1 replied to that to state: “Then everything goes for tax and repay how should I survive the whole month.” SK replied to say that at their last meeting he had told C1 he would give 40 hours definitely, and anything over that would be on business needs. SK also said he would see what he could do but: “Things are not good at the moment in terms of business side… people spending is going down day by day.” C1 said that he understood but he also had to see his own side, and: “If I have any other option to do I don’t mind getting less hours here but I have no option.”

4.49 SK’s explanation given in cross examination for this whats app exchange and the reference to working 50 hours was that C1 was working 40 hours in Noodlebox/Shivaay and 10 hours in Pepe’s Port Talbot/OMSR. SK said that C1 was seeking more hours again and more hours than C1 could give him. SK said he understood that C1 was generally always seeking more hours, in particular to be able to send funds back to the family in India.

4.50 C1 says that around this time he had shared with SK the hardships he was going through. C1 says that SK told him that all Hindus go through suffering, which made them stronger and that SK had himself faced these hardships when SK was fairly new to the UK. C1 says that SK said that to obtain indefinite leave to remain, paying taxes was a must. C1 says that he was made to feel like an inferior Hindu for questioning this, and that SK having himself suffered was showing C1 that SK was a devout Hindu. C1 says that SK also started asking about C1’s family back home in India and C1 told SK about his family. C1 spoke about his brother being a graduate in Hotel Management, and was looking for work. C1 says that SK said he was looking to hire more employees from the UK or India as part of SK’s business expansion plans and SK suggested that C1 bring his brother to the UK because both of them working in the UK would be helpful in improving their financial support for their family in India. C1 says SK suggested that C1 talk to his parents and brother about the opportunity and get back to SK.

4.51 SK says in his witness statement that he did not discuss personal matters with employees and would always give positive advice to employees when they approach. He says he would always advise employees to show work ethics to grow in their position and tell them how he had come across hurdles to achieve the position. I return to this conversation between C1 and C2 in my Discussion and Conclusions below. He said it was C1 that was keen to bring his brother to the UK.

4.52 On 21 November 2022 SK messaged C1 about C2 coming to the UK, saying it would take time and they needed to get documents prepared, have funds in India, and prepare an amount for all the fees. C1 replied to ask what they needed for documents and how much funds he should get ready. SK said they would need all degree documents; a UK Naric (the National Academic Recognition Information Centre which at the time was the body for assessing international qualifications for UK equivalence); 5 lakhs in an Indian account, and £8000- £9000 for the whole process. SK said he had two more requests at the time, so if C1 had more time to bring his brother, then SK would process the others first and then C1’s brother. C1 said it may take 2 months to get everything. SK said once C1 had confirmed what they were doing, and sent SK £2500 for the Certificate of Sponsorship application, it would take one to two months from there. SK said to take some time for C1 to speak to his brother, and confirm what they wanted to do by the beginning of the following week.

4.53 In December 2022 C1 did not get paid his November pay on time and asked SK. C1 says that SK said again that all of C1’s pay went towards Visa cost instalments after tax, national insurance, VAT and also because there was an outstanding August tax bill of £454.56. C1 says that he was broken by this and asked SK for permission to take a second job. C1 says he also asked SK to allow him to move back from Port Talbot to Cardiff because C1 was finding it very depressing and lonely to live in Port Talbot. C1 says that SK agreed that C1 could take a second job but refused the request to relocate. C1 says he felt he could not press SK because SK was his employer and sponsor.

4.54 C1 says he got a second job in Cardiff and travelled to Cardiff two days a week for that second job. He was working in a business called Chaiiwala, which is not connected to SK. SK says that C1 was working in Chaiiwala as a third job.

4.55 SK denies that C1 was left with no November pay. SK says that C1 was paid his Noodlebox/Shivaay salary in cash of £2325.76 and also paid for hours worked in Pepe’s Port Talbot. SK’s witness statement says that C1 was paid £171 for this, but the schedule handed in in closing arguments asserts that C1 worked 66 hours for OMSR and has been underpaid £456.00. Again that figure is not agreed by C1.

4.56 C1 says that he was worried about his December pay (payable at the start of January) because he was working less hours for SK because there were new staff working there, and he was worried about covering the December instalment of Visa costs. He says he asked SK to move that Visa instalment to January’s pay instead and that SK agreed. January 2023 developments

4.57 On 4 January 2023 SK messaged C1 saying they were very quiet. SK said if Chaiiwala offered hours then C1 should try to grab as much as he could there [377]. C1 asked for full days with SK on the Friday, Saturday and Sunday. SK said he would see, they had got everyone now (my understanding is that was a reference to the staffing levels), so would try to sort it out. C1 protested that he was only coming 3 days and in Cardiff only had 2 days [378]. SK replied to say: “From next week you will be here” [378]. On 17 January 2023 C1 messaged to say: “Anna at least give some hours for paying tax I’m not getting enough hours in Cardiff as well paying 975£ will be very tough for me.” SK replied to say he would speak to C1. On 21 January 2023 SK sent C1 a screen shot of a shift update at OMSR (Pepe’s Port Talbot). On 24 January 2023 SK messaged to say C1 might be working Thursday and Friday and C1 said he already had shifts confirmed in Chaiiwala. C1 says that at this time he was completely broken mentally and financially and had to borrow money from friends to stay afloat in paying his rent and bills. He says that on 6 January 2023 he then received only £170 cash which he understood was for December 2022 pay.

4.58 SK said in cross examination that C1 had said he wanted to work the hours elsewhere at Chaiiwala, and that SK had told C1 it was not legal under C1’s Visa. SK said C1 was seeking more than C1’s normal hours and that SK did not have the hours to give either at Noodlebox by way of overtime or Pepe’s Port Talbot. SK said the reference to “In Cardiff only had 2 days” was a reference to Chaiiwala. It was put to SK that C1 would not have been able to work 40 hours in Noodlebox and then 3 days in Pepe’s Port Talbot and 2 days in Chaiiwala Cardiff within one week because there simply would not be enough days/hours in the week. SK said he had never agreed that C1 would work Friday, Saturday and Sunday in Pepe’s Port Talbot, that the Claimant would only ever work 15-20 hours a week there, and also there might be days where C1 would work part of the day in Pepe’s Port Talbot and part in Cardiff. SK said he did not accept that C1 was paying £975 as mentioned in the whats app, and that the whats app does not show SK agreeing to that figure. SK said it was a busy time and there would have been messages floating on his phone that he may have missed or not paid much attention to and that does not mean he should be taken to have agreed what the messages from C1 said.

4.59 SK denies that C1 only received £170 pay for December 2022. SK says that C1 was paid a Noodlebox salary of £2095.56 as well as OMSR pay. The schedule handed up in closing submissions asserts that C1 worked 70 hours at OMSR, was paid £171, and is still owed £494. Again the figure is not agreed by C1.

4.60 To try to get some more funds, C1 decided to pick back up the possibility of getting a refund for his old Visa, that he had forgotten to do previously. On 24 January 2023 he messaged SK asking for his Certificate of Sponsorship and application number. C1 chased SK again on 26 January 2023 and also chased his payslip. SK put the Claimant in touch with Mr Patel again and C1 messaged Mr Patel on 26 January 2023 identifying himself as: “Rajkishore from Pepe’s Port Talbot” [382]. Mr Patel later asked C1 what company he was in and C1 replied: “Noodle box, Shivaya I think” [383]. C1 says that he called SK to ask him this; although I note that the question from Mr Patel and C1’s reply are sent in the same minute: 9:03pm. There were, however, no questions asked about that in the cross examination of C1. Mr Patel sent C1 the information that C1 asked for, which included a copy of the Certificate of Sponsorship that I have summarised already above. C1 says that at the time he did not understand the relevance of the need for the identified sponsor to be paying him and that the company the Certificate of Sponsorship is issued for should be the same company he was working in.

4.61 On 27 January 2023, SK sent C1 a series of payslips [395-397]. C1 says these were the first payslips he received because whenever he asked SK previously, SK would say that the accountant was busy. SK disputes this saying that payslips were provided every month in person. On the balance of probabilities I do not consider it likely that C1 received payslips before 27 January 2023, because of the contemporaneous whats app messages in which he was chasing them up.

4.62 The payslips are all in the name of Shivaay Fast Foods Limited (R1). The first is dated 31 August 2022 and refers to a BACS net payment for 9.5 hours work at £20 an hour and no deductions for tax, producing a payment of £190.00. The payslip for 30 September 2022 refers to basic pay of £2500 and deductions for employee national insurance of £192.39, purporting to show a net payment to C1 of £2307.61. The payslip also records an employer NI contribution year to date of £192.39. The payslip dated 31 October 2023 is in the same amounts. The payslip dated 5 December 2022 (so November 2022 pay) again purports to show basic pay of £2500 and deductions of £174.24 for employee national insurance, giving alleged net pay of £2325.76. The payslip dated 31 December 2022 (so December 2022 pay) again has a basic pay gross figure of £2500 and shows deductions for income tax of £151.00, employee national insurance of £174.24 and Nest pension of £79.20 giving alleged net pay of £2095.56. The payslip dated 31 January 2023 has the same basic pay figure and deductions for income tax, employee national insurance, and Nest pension, giving an alleged net pay figure of £1956.16.

4.63 C1 says that he met with SK at SK’s house on 30 January 2023 and that SK explained how he was calculating and making deductions from C1’s wages. C1 says that SK wrote it down on a piece of paper and handed it to C1 to look at, and that SK explained the monies that C1 should be paying for tax, national insurance and VAT. C1 says that SK told him that VAT was fixed at £200 a month. C1 says he took a photograph of the piece of paper before handing it back to SK. For August the note refers to a figure of £454.56. For September it refers to tax and national insurance of £454.56 and £200. The £454.56 is broken down into two figures of £192.39 and £262.17. I note these figures match the employer and employee national insurance contributions on the September 2023 payslip. There is no tax payment showing on the September 2022 payslip, but the handwritten figure of £200 is the same figure that was written for VAT on the original spreadsheet that SK had previously sent to C1. The handwritten note also has “Paid 974” written on it for September.

4.64 The handwritten note refers to £454.56 and £200 again for October 2022 for tax and national insurance and again records “Paid 974.” For November 2022 it records figures of £436.41 and £200 totaling £636.41 and again “Paid 974.” For December it has figures of £644.84 and £200 and again says “Paid 974.” For January it has figures of £784.24 and £200 totaling £984.24.

4.65 C1 says that SK told him that he would only get £170 towards his December pay after deductions for taxes and there was not enough money to pay towards Visa costs, which would be deducted from the following month. C1 says that SK told him that the figures shown did not have any Visa fees deducted and that C1 still owed £1854, which C1 would pay with three instalments of £618. SK said in evidence he could not remember this and as already stated he denied receiving any Visa reimbursement payments other than the initial £2500.

4.66 C1 says that he also questioned SK about the Certificate of Sponsorship and the payslips referring to Shivaay when he was working shifts for OMSR. C1 asserts that SK said that both of the companies were his and it would not be an issue, saying: “you just work for me.” C1 says that SK also said that C1 had been enrolled in the pension scheme in December 2022, and that C1 should opt out because it was of no use contributing at that time and it could save some money.

4.67 C1 says that when he was in SK’s house SK also got him to sign various documents to say he had been paid. C1 says that he was not given a copy to take away but they could be the documents at page [196] in the bundle. This is a document with a typed date of 30 September 2022, addressed to Shivaay Fast Foods Ltd signed by C1 (though he did not date his signature) which says: “I have received my full September salary by cash. Thank you very much for considering the request to pay my full wages of September 2022 by cash.” No particular amount is set out. [197] is the same for October 2022.

4.68 SK disputes C1’s version of events. SK denied that the handwritten note was sent by him to C1. SK accepted that it was his handwriting and said that C1 may have taken a photograph of something on SK’s desk that was not related to C1 and written for other work. SK said he did not recognise the amounts written down.

4.69 C1’s version of events about meeting with C1 and what he was told about this handwritten note was not challenged in the cross examination of C1 and it was not put to C1 in cross examination that he had taken a photo of a page on SK’s desk. SK’s oral evidence was that he believed that C1 was taking various references to £974 or £975 and taking the excel spreadsheet and the handwritten note to build an allegation against SK. This dispute again forms part of the central dispute in this case about where C1 was working and what he was being paid that I return to shortly. Early February 2023

4.70 C1 says that on 3 February 2023 SK sent him a new payslip for August 2022 and that SK said the previous payslip for that month was incorrect. This different pay slip for August 2022 [401] is still in the name of Shivaay but has C1 being paid basic pay of £2500 with deductions for national insurance of £192.39 giving a net pay of £2307.61. SK said in evidence he could not now recall why there were these two different pay slips for August 2022.

4.71 On 5 February 2023 C1 chased SK for his pay. C1 chased again on 7 February 2023 [402].

4.72 On 9 February 2023 SK sent C1 a new employee form for Shivaay Fast Foods Limited and told C1 to fill it in, sign it, and send it back by the next day [403]. SK also sent C1 details of the Nest pension helpline, about opting out.

4.73 On 18 February 2023 [203] C1 signed what is said to be a contract of employment between him and Shivaay Fast Foods Limited, saying that the employment will start on 1 August 2022 (a different date to the Certificate of Sponsorship). The job title is head chef and the normal place of work as Noodlebox, Cardiff. The working hours were set out at 40 hours a week and £30,000 salary per year. Pay was to be in arrears by BACS or cash on request. The contract states there is an entitlement to 28 days holiday a year to include bank holidays with the holiday year running from 6 April. In relation to the pension scheme it says: “The employee is eligible to pension by our pension provider unless they choose to opt out. In this case, Mr RajKishore Balne has chosen to opt out.” The contract is countersigned by SK’s wife, on behalf of Shivaay Fast Foods Ltd. SK said in evidence that this was an updated contract of employment for C1 and that they were updated regularly. If so, I have not been given a copy of any earlier alleged versions. On that same date of 18 February 2023 C1 also signed the new employee form for Shivaay Fast Foods Limited [204]. It seems to have an employment start date on it for Shivaay Fast Foods Limited of 1 September 2022. On 18 February 2023 C1 also signed a code of conduct document and a change of circumstances document [210] which says the employer is Shivaay Fast Foods Limited. On the document the Claimant has said “no” to the questions of whether his circumstances have changed over the previous 12 months. Again SK said in evidence these were updated forms, not the originals. Initial factual conclusions on where C1 was working and pay arrangements

4.74 I pause here to reach my factual conclusions about where C1 was working up until this point in time, and my conclusions about payments received. C1 says it was Pepe’s Port Talbot throughout. The Respondents say that C1 was working 40 hours a week at Noodlebox/ Shivaay, Cardiff, and working some additional hours (less than 20 a week) at OMSR/Pepe’s Port Talbot.

4.75 Applying the balance of probabilities I find that C1 never worked at Noodlebox (Shivaay). I find that throughout this period C1 worked only at Pepe’s Piri Piri in Port Talbot (OMSR). Who C1’s employer was is a mixed question of fact and law and so I return to that separate question in the Discussion and Conclusions below. But I reached my finding of fact about the work that C1 was doing and where (i.e. Pepe’s Port Talbot) for the following main reasons: (a) Arrangements were being made very quickly after the appointment with the immigration consultant on 28 July for the C1 to move and take up the tenancy in Port Talbot – the first emails are dated 1 August 2022. Allied to this I consider it highly implausible that the C1 would have asked to move to Port Talbot if his main job was at Noodlebox in Cardiff. I appreciate what SK says about rent potentially being cheaper; but C1 would have been incurring considerable time and cost in regularly commuting from Port Talbot to Cardiff for his main job if SK’s assertions are correct. It is far more plausible, in my judgement, that SK was offering the C1 a job under a Skilled Worker Visa in Pepe’s Port Talbot, and that once the C1 had agreed to that SK, then said he wished C1 to move to Port Talbot to be available for deliveries and the like; (b) The Respondents have failed to disclose contemporaneous records about where C1 was working and his hours of work. In particular, the daily staffing sheets that would have been completed for each establishment and SK’s own excel spreadsheets. Given this issue is at the very heart of this case it would, in my judgement, have been obvious that these documents were relevant and disclosable. The Respondents’ representative asked me to find that this simply came down to poor administration on the part of a small business owner. However, he did not demure from my observation that I must work on the presumption that, as represented parties, the Respondents would have been properly advised as to their disclosure duties. I therefore do not find the explanation plausible and consider it more likely that these documents were not disclosed because they would not assist the Respondents’ assertions; (c) SK was identified in C1’s whats app as being from Pepe’s rather than Noodlebox and C1 first identified himself to Mr Patel, when contacting Mr Patel as being from Pepe’s Port Talbot (although I appreciate C1 later referred to Noodlebox/Shivaay (misspelled as Shivaya)); (d) Other than the Certificate of Sponsorship, there is no immediate paper trail linking C1 to Noodlebox/Shivaay. No contract of employment has been given to me prior to the one in early 2023. I have already mentioned the non disclosure of the daily sheets for the workplace. There were no, I have found, payslips given to C1 until early 2023 for any work undertaken by C1. Instead the early paper trail links more to OMSR/Pepe’s Port Talbot with C1 receiving two bank transfers initially and a new employee starter form; (e) If, as SK says, C1 was from the end of August 2022 working 40 hours a week at Noodlebox and being paid his salary there net of deductions, I do not understand (a) why C1 was not given payslips contemporaneously at the time for Shivaay or (b) why C1 was paid in cash (if paid at all) rather than through his bank account. Indeed, payments in cash to sponsored workers are not permitted; as set out in the Home Office guidance document I was given. The explanations that SK gave me in oral evidence about this and also about pay arrangements for OMSR did not make sense to me and at times were contradictory (for example, whether he spoke to the accountant or to the accountant’s assistant). It is in my judgement more likely that C1 was not being paid his net salary for Noodlebox at all because C1 was not working at Noodlebox; and hence it later being said that the payments were by cash for which there is no or a limited paper trail, and the belated production of alleged payslips. (f) The contemporaneous whats app messages are not indicative of C1 working in Noodlebox earning a generous salary every month. Even accepting that C1 would have been looking to send money back to his family in India each month and might still owe SK some Visa costs and might want to work some extra hours; I do not find it plausible that C1’s whats apps where he is so desperately asking about hours and pay are explainable by that. It is far more plausible, in my judgement, that C1 is seeking hours and expressing concerns about his pay because he was not receiving the Noodlebox salary every month. That C1 was not working in Noodlebox and was therefore dependent on hours in Pepe’s Port Talbot also better explains SK’s encouragement to C1 to seek extra hours at Chaiiwala, and also the references to C1 only being in Cardiff 2 days (i.e. 2 days at Chaiiwala, and no reference to Noodlebox which is also in Cardiff, because C1 was not in fact at Noodlebox).

4.76 I do accept that there is evidence that could point the other way. That includes the Skilled Worker Visa being in the name of Shivaay for work at Noodlebox. It also includes the contract of employment and new starter form that the Claimant signed in early January 2023 and the cash receipt documents. There is also the belated production of the Shivaay payslips and the fact that in due course payments were later made by bank transfer to C1 from Shivaay (subject to the disputed issue about claw back that again I return to below). But on balance these things (or any of the other evidence before me) do not persuade me. I have also been particularly conscious of the point that if SK’s plan was to recruit C1 to Pepe’s Port Talbot then why not just issue a Certificate of Sponsorship for that business and I have asked myself does that suggest that C1 was working at Noodlebox? But I do not consider that point determinative. There may be a variety of reasons why someone in SK’s position would do that; for example Pepe’s Port Talbot was a new business whereas Shivaay was an older business potentially already with a valid sponsor licence. That is not a finding of fact by me because I do not actually know why SK did what he did in having the Certificate of Sponsorship in one name/place of work and in fact the Claimant working at a different business. I do not have that evidence from SK because SK’s account is contrary to my findings. It is simply an observation that there could be a reason for having a Certificate of Sponsorship for one role/business and in fact the individual ending up working in a different role elsewhere.

4.77 In terms of the cash receipts being signed by C1; C1’s evidence is that he signed them belatedly and simply asked whatever SK asked C1 to sign. I find C1’s evidence on that plausible and accept it. Indeed, I would anticipate that one of the main reasons why the Home Office Guidance says payments should be by bank transfer rather than cash is because of this kind of risk. I consider it likely that in January 2023 the production of documents to C1 and documents for C1 to sign relating to Shivaay, are more likely explained as an attempt by SK at that point to create a late paper trail of a link between C1 and Shivaay/Noodlebox whilst at the same time continue to manipulate C1’s understanding of what his pay entitlement was.

4.78 Turning to matters of pay, on the balance of probabilities I do not find that during this period C1 was receiving cash for the net salary for Shivaay/Noodlebox every month. For reasons set out above, the cash receipt documents do not satisfy me of this and again, as already said, I do not understand why if everything was regular with C1’s employment and sponsorship, he was not being paid by bank transfer every month with a contemporaneous payslip given to him. On the balance of probabilities I accept C1’s evidence that in fact during these first months of 2022 he only received from any of the Respondents:

• An initial advance of £500 and then the bank transfer of £1080 from OMSR in respect of August 2022 pay;

• A cash payment of £1080 for September 2022 pay;

• No pay after deductions for October 2022 or November 2022 pay;

• £170 cash for December 2022 pay.

4.79 I also do not accept SK’s evidence about the payments he says that were given to the C1 by OMSR as set out in SK’s evidence and the late appearing purported payslips for OMSR. There is no convincing documentary evidence to support the calculation of those payments and their handing over to C1 (for example the daily sheets for the workplace and SK’s own spreadsheets). Of course SK ultimately accepted that even on his own case these figures and payslips were not correct because on his own case OMSR had been underpaying the Claimant. Again I am invited to put that down to poor administration. However, in my mind it is another point that indicates that what SK was doing was attempting to paint on the surface C1 working only a limited number of hours at Pepe’s Port Talbot to hide the reality that this was C1’s true full time place of work for SK in breach of the sponsorship terms. The hours being reported on OMSR payslips etc then did not reflect reality.

4.80 I appreciate the Respondents’ point that the C1 could say anything in evidence about cash payments. That is of course the risk, and the point goes both ways. But what the Claimant’s bank records do show is C1 paying into his bank account the cash sum of £1080 which offers some support for what C1 says about receiving that sum in cash. Further in general given my concerns about the work and pay arrangements that the Respondents had in place, I generally find C1’s evidence about where he was working and what he was receiving by way of pay more credible and I prefer it to that of SK. I therefore do not find that during this period C1 received the sums that SK asserts that C1 did either through cash salary payments from Shivaay or through payments from OMSR as set out by SK in his witness statement. I also do not find the HMRC records in the hearing file of any great assistance; they are confusing. They also will only reflect what information the Respondents will have given to HMRC. It does not mean they are correct.

4.81 In terms of what was going on between C1 and SK during this period, I consider it likely and find that C1 was largely dependent on SK and was going along with what SK was telling him. I think it is likely that SK did say to C1 at some point that the companies were all his and it did not really matter who the relationship lay with on paper. I do not consider it likely that C1 initially had the Certificate of Sponsorship or Shivaay contract of employment or that C1 had an understanding of entitlement to a salary irrespective of hours worked, or the working of the UK tax system which he had had little interaction with previously. I also do not think it likely that C1 in general was given copies to keep of documents he was signing at SK’s direction.

4.82 As against that context and vulnerability of C1, I consider it likely and find that C1 entered the relationship with no understanding of a salary system of pay but with a belief he would initially be paid £10 an hour with the promise of an increase. I consider it likely and find that SK knew he was legally required to pay C1 the salary set out in the Certificate of Sponsorship, but it was not SK’s intent to do so; and instead SK’s intent was to pay C1 less. The rate of pay in the Certificate of Sponsorship would have had to fall within guideline rates set by the Home Office for Skilled Worker Visas, so it is not something that SK would have had much control over in terms of the official paperwork if he wanted to get the sponsorship approved.

4.83 I consider it likely and find that C1 did pull up the initial spreadsheet at [365] as a means to mislead C1, and that SK told C1 that tax, employee NI, employer NI, and VAT all had to be paid by SK and then deducted before SK paid C1. I appreciate that parts of that spreadsheet do not make sense (at least without knowing exactly what SK told C1 at the time) but what is notable is that the monthly basic pay figure of £2500 is there at the top of every month which is the gross salary payable to C1 at the rate given on the Certificate of Sponsorship. In my judgement this helps show that SK knew his legal obligation to C1 was a salary of £2500 a month, but that SK was going to set out to C1 a series of deductions from that which would result in C1 receiving a lesser amount, with deductions of around £974 a month. I also do not accept that this was SK simply giving C1 SKs legitimate best guess of what employee tax and employee NI figures would be. For one, it would not explain the reference to VAT which simply is not payable on employment income. SK’s explanation for why he says he sent the spreadsheet to C1, if as SK says, it did not relate to C1 or any employee, simply makes no sense to me.

4.84 Support for this finding can also be found within the whats app at [373] in November 2022 when C1 said if everything goes to tax and repay how was he going to survive the month. Support also comes from the whats app of 17 January 2023 when C1 asked to at least be given hours for paying tax and that paying £975 would be very tough for him. SK says he did not agree to that statement by C1; but the fact is that it is there is C1’s whats app.

4.85 I consider it likely and find that SK did also speak to C1 about experiencing hardship and suffering as Hindu and that SK himself had faced hardship when he had initially come to the UK, and that to get indefinite leave to remain paying taxes was a must. I also consider it likely that this was part of SK’s manipulation of C1, rather than being simply the proffering advice and support, or an explanation of the UK taxation system.

4.86 I consider it likely and find that SK told C1 that C1 would not be receiving any pay for October 2022 because of the deductions and recoupment of a Visa cost instalment. I also consider it likely and find that SK told C1 the same again about the November 2022 pay together with a need to recover an August tax bill. It may be that this links in with C1 later being given a different Shivaay pay slip for August 2022 although quite what was happening with those two different August 2022 payslips I do not know.

4.87 I also consider it likely and find that at the meeting between C1 and SK in January 2023, SK did produce the handwritten note that C1 took a photograph of. Whilst I cannot understand all of the figures on it, it is a very close link back to C1 being told he had to, and was paying, deductions of £975 a month. I find it highly implausible and reject SK’s notion that C1 had taken a photograph of an unrelated piece of paper on SK’s desk. I also consider it implausible and reject the notion, as put forward by SK, that C1 was planning at that time to take that document and use it in conjunction with the spreadsheet (or indeed anything else) to later create a case against SK.

4.88 In terms of visa cost reimbursement, I find that in November 2022 C1 was told that his October 2022 pay was reduced to nil after deductions for tax and national insurance (as above) and then a visa cost instalment, with the same again happening for November 2022 pay (payable in December 2022). I find that SK said there was no visa instalment deduction applied for December 2022 pay (payable in January 2023) because C1 was not left with enough to cover it after the other deductions and the visa deductions would be carried forward to future months. I find that the visa costs were never properly explained or broken down to C1 by SK. I find that C1 was told fairly early on by SK that the costs would be £6090 with £4090 left to pay. I accept C1’s account in that regard in preference to SK’s in circumstances in which the Respondents have failed in this litigation to clearly set out visa amounts supported by documentary evidence. I find C1 then paid £500 on 3 August 2022 and a further £500 cash on 30 August 2022. Again, I accept C1’s evidence about that cash payment.

4.89 I do not consider that SK has ever properly explained the legitimacy of the sums he was charging C1 or deducting from C1’s pay for visa costs. On the face of the Home Office documents given to me by the Claimants where the Respondents did not take up the offer to put their own alternative Home Office documents forward; the Skilled Worker visa cost for C1 would have been £704. SK said in evidence that the figure he paid was much more than that; but the difficulty is that the Respondents have not produced the documents to show this. The certificate of sponsorship cost was £199, although SK and the Respondent’s representative both asserted that was payable by the Respondents and not C1. There was an immigration health surcharge to pay that the parties did not seem to dispute was around £1800 for 3 years. SK then said he paid £800 to the Immigration Consultant. I note that the documents produced by the Immigration Consultant do refer to a fee of £1219 but the difficulty I have again is that what this is made up of has never been explained to me. The figures for the visa cost at £704, certificate of sponsorship cost, immigration health surcharge figures and immigration advisor fees therefore total approximately £3503 if the certificate of sponsorship is included or £3304 without. February and March 2023

4.90 Having made those initial findings, I now return back to the narrative of the case.

4.91 C1 says that in February 2023 he received £116 in cash which he understood was for January 2023 pay. C1 says that was his pay because he was not given many hours, and because of deductions for taxes and VAT. C1 says his Visa cost instalment was moved forward again. C1 says that SK was pressing him for Visa cost instalments and that SK wanted C1 to get hours and pay from his other job at Chaiiwala and pay SK back, but C1 was not getting many hours from Chaiiwala. SK says in his witness statement that C1 was paid net salary of £1956.16 from Shivaay and £171 from OMSR, although again SK says that for OMSR there was also an underpayment of £361. Here again I accept C1’s evidence about what he was paid and told, which accords with my findings above about what was happening in the run up to February 2023.

4.92 C1 says that he had continued to ask SK for permission to move back to Cardiff, which had been refused, but he tried again, saying that the travel costs to Cardiff for the other job were affecting his means too, and that SK eventually agreed C1 could move back to Cardiff. C1 then moved into a 3 bedroom flat in Cardiff with 2 friends. SK was guarantor. SK denies ever having refused permission for C1 to return to live in Cardiff. On balance I accept that SK is likely to have discouraged C1 from returning to live in Cardiff.

4.93 In March 2023 C1 was disappointed when SK announced that Mahesh was to be the new manager of Pepes Port Talbot. C1 says that SK then spoke to him again about starting his brother’s Visa process, and spoke of the benefits of them both having Skilled Worker Visas and the potential for indefinite leave to remain. C1 says that he asked SK why he had not been made manager. C1 says that SK told him that relocating to Cardiff was one reason because C1 would not be able to take responsibilities such as deliveries and end of day checks. C1 says that SK told him SK was planning to open another Pepe’s in Caerphilly and would definitely make C1 manager and give the promised pay. C1 says that he thinks SK knew C1 was losing faith in him, and that SK wanted to give C1 fresh hope about the Caerphilly branch. C1 was not directly challenged about this evidence in cross examination (although the general premise of where he was working was challenged). I accept C1’s evidence about this conversation with SK and the origins of C1 in due course working in Pepe’s Caerphilly.

4.94 C1 messaged SK on 10 March asking SK if he had gone through his wages for the previous month. On 14 March C1 asked SK to recheck his February hours again, saying he thought there was a miscalculation. On 16 March 2023 SK asked C1 if he had taken a new cap from the office. C1 said he had not, and asked again about his February hours. SK said he would check the next morning [405]. C1 says that SK did not get back to him about it.

4.95 C1 says that in March 2023 he only received £140 in pay for February 2023 because all his hours from February went towards tax, VAT and Visa costs. He received that bank transfer of £140 from OMSR on 14 March 2023 [522]. SK says that C1 received net salary of £2035.36 from Shivaay and £171 from OMSR, with an underpayment from OMSR of £430. Here again I prefer the evidence of C1 and do not find C1 received the sums asserted by SK.

4.96 On 21 March 2023 C1 messaged SK asking why his hours had been reduced again on Saturday and Sunday [406]. On 25 March 2023 C1 messaged SK with a snapshot of a cancelled train journey [406].

4.97 SK asserts that in March 2023 C1 took unpaid leave and did not work at all either in Noodlebox or Pepe’s Port Talbot, such that no pay was paid to C1 for that month. SK said C1 had personal issues and said he was taking time off. C1 disputes this. I prefer the evidence of C1 and find that he did work some hours at Pepe’s Port Talbot and that C1 did not take unpaid leave. Support for this comes from the contemporaneous whats apps where SK asked C1 about taking a cap from the office, C1 messaging SK about his hours on Saturday and Sunday, and sending SK the snapshot of a cancelled train. C1 is therefore entitled to be properly paid for the month of March 2023. C1 says that on 12 April 2023 C1 received a bank transfer of £345 from OMSR [524]. C1 says he would receive a call after every payment to say that the rest of the money had gone towards taxes, VAT and Visa costs. I find that C1 was paid £345 for his March 2023 pay and that again he was told this was after deductions for taxes, VAT and Visa costs. April 2023

4.98 C1 says that in April 2023 SK asked him what was happening with his brother and C1 told SK that their parents were arranging the funds. C1 says he asked for some time off to go and see his family in India and that SK initially agreed. C1 booked his flight and says that a couple of days later SK said that he needed C1 to cancel his flight ticket because a colleague in Pepe’s Port Talbot needed to go and visit that colleague’s mother who was very ill. C1 says that SK said he would reimburse the cancellation charges. SK says that C1 had booked the holiday without giving any notice and that there was no agreement to reimburse the flight cancellation charges. C1 said in cross examination that he had mentioned the holiday in advance to SK before he booked the flight and that when it was cancelled SK had said not to worry he would pay C1 back and sort it later. SK says that C1 still took 8 days holiday in April 2023 despite not going to India. C1 says that he did not end up taking any leave that month. I return to this area of dispute later.

4.99 On 12 April 2023 there was a whats app exchange between C1 and SK where C1 wrote: “I understand Anna but coming for a few hours is no point at least give some more hours end of the month I’m not getting anything from their only money I get is going for tax. Still now I didn’t get paid and how much tax and what’s the balance apart from that I’m getting nothing anna please understand I have bills to pay. I have changed plans of going India because there’s no staff and loss of money now but I’m not complaining.” SK replied to say he would talk to C1 that day. C1 says that in April SK then gave him some more hours.

4.100 In terms of whether there was a promise to reimburse C1 the cancelled flight costs, I have the evidence of C1 and SK which is contrary to each other. Applying the balance of probabilities I prefer the evidence of C1 and find that SK did promise to reimburse C1 the cancelled flight cost when C1 agreed to cancel it because a colleague’s needs were greater. I find that C1 was then not reimbursed that money. I find it a logical promise in circumstances where C1 needed to change his plans because of a colleague’s family situation. The Company Car

4.101 C1 says that in late April there was an industrial strike in Transport for Wales and as a result trains were being cancelled, meaning that he and a female colleague would be late for work. C1 says that initially SK got someone to drive them to Pepe’s Port Talbot but that later on SK asked C1 if he could drive. C1 says that he told SK he could drive but did not have a UK licence. C1 says that SK told him it would not be an issue, and SK asked him to drive a company car and give a lift to the female colleague. C1 says that he thought that SK had arranged the paperwork for him to drive and that he started using the car only when there was a problem with public transport. SK denies this, saying that C1 was using the company car without SK’s knowledge. I return to this dispute shortly below.

4.102 C1 says that on 5 May 2023 he received £218 from OMSR for April’s wages [526]. C1 says that SK again told him that the rest had gone towards taxes and VAT and the last instalment of Visa costs carried forward from previous months. SK says that in for April 2023 C1 was paid the sum of £800 as holiday pay from Shivaay and £166.72 from OMSR representing 16 hours a week work. The schedule handed up in closing submissions asserts that in fact C1 worked 23 hours at OMSR that month to a value of the £218 paid to C1. SK said in evidence that in April 2023 at Noodlebox C1 took 2 weeks’ holiday and also 2 weeks unpaid leave. C1 said that he worked at OMSR throughout and did not take holiday or unpaid leave that month. Here I prefer the evidence of C1. I do not find C1 was working at Noodlebox or indeed taking holiday or unpaid leave from Noodlebox. I also do not consider it likely that if he cancelled his trip to India because a colleague’s need was greater, that C1 then still took holiday anyway staying in the UK. I consider it likely that C1 would have kept his holiday for another time, and also if he needed to cover a colleague there would have been work C1 needed to do. I conclude on the balance of probabilities that C1 worked at Pepe’s Port Talbot in April 2023 and is entitled to his normal salary for that month.

4.103 C1 says he asked SK for an advance of £500 and that was sent to him on 8 May 2023 through OMSR [526].

4.104 C1 says that on 8 May 2024 there was a train strike and SK asked him to drive a colleague, Ambika, home. C1 says SK told him to park the car at his own home and keep the keys. C1 says that on 13 May 2023, on a day off, SK told him to pick up Ambika and drive her to Pepe’s Port Talbot. C1 says he reluctantly agreed and that when travelling on the M4 by Bridgend they had a serious car crash. C1 telephoned SK who came to the scene with VK. C1 was later taken to hospital and was discharged after 24 hours. C1 was upset and scared and told SK he wanted to visit his family. He says SK told him to rest and that SK would think about it. C1 says that SK told him he had sorted the car which had been scrapped at a cost of £400 to £500. C1 says he told SK that he was extremely sorry about what had happened and that SK told him to forget about it. C1 says SK gave him some time off and he went to a friend’s place for a couple of days and then was back on shifts from 18 May 2023.

4.105 SK says that he had no knowledge that C1 was using the company car, that C1 knew it was an offence to drive without a valid licence, and it was C1’s decision to do so. SK’s evidence is that after the car crash he did an investigation and found out that C1 had used the car on a few previous occasions. SK says that as a gesture of goodwill C1 was given a verbal warning. SK says the car was a write off and there was no insurance in place to cover C1’s driving of it. SK said in oral evidence that he understood that C1 and Ambika were using the car to go shopping.

4.106 On the balance of probabilities, I find it likely that SK did instruct C1 to use the car for work purposes, including driving Ambika to work. I find it likely that SK knew or turned a blind eye to C1 not having a valid UK licence. I find it implausible that C1 and Ambika would use the car to effect go on a jolly. I also find it implausible that if SK really thought that C1 and Ambika had decided together to take his car without consent, and then crash it at a great financial loss to SK, that SK would then either take no action against C1 and Ambika or at most give C1 a verbal warning. SK also told me that the car was insured fully comprehensive so I also do not understand on the face of it why there was no car insurance if indeed the car was stolen by C1. It would be possible for example than an insurer would decline cover because of insufficient safekeeping of the keys but, if so there would be paper trail for that, which I have not seen. Hence, on balance, I find it more likely that SK knew the reality of the situation. May 2023 – pay recycling

4.107 SK said he would help C1 with booking a flight to India because SK could get better rates and SK did so. On 23 May 2023 C1 paid £1200 to SK towards on the face of it the Certificate of Sponsorship for his brother [411]. C1 says that at the time he did not know it was the employer’s responsibility to pay the fee or that it should only be £249.

4.108 C1 says that on 25 May 2023 SK told him to come to SK’s house and that he was then given some paperwork to sign saying he had received his wages in full in cash for all the months he had worked. C1 says he signed them because he was afraid if he did not do so it would affect his brother’s Visa process. SK asserts that the cash receipts are genuine. I do not find that they are for the reasons already found above.

4.109 C1 says that in May 2023 SK also told him he needed to get paid from Shivaay Fast Foods Limited for the following months because the accountant had told SK that. C1 says that SK then said SK would give C1 a specified amount to pay SK in cash in advance of SK then running the payroll payment. C1 says he told SK that he did not have any money to give SK in advance. C1 says he told SK that he only had the money his father had sent him for his brother’s Visa. He says that SK then asked him to withdraw that amount and that he felt he had no option other than to withdraw £2060 and give it to SK in cash. C1’s bank statement at [529] shows C1 withdrawing £210, £300, £300, £300 and £100 on 2 June and then £300, £300 and £250 on 3 June. C1 says he gave the cash to SK on the evening of 2 June 2023 when SK came to his home, as C1 was travelling to India the next day. On 5 June 2023 C1 then had the sum of £2085.16 paid into his bank account from Shivaay [529]. C1 says this was almost the same amount that he had given to SK in advance. He says that SK told him he had done less hours in May, that those hours covered only tax and VAT, and the rest was kept for charges for scrapping the crashed car.

4.110 SK denies this and says this is just part of C1’s plan to get money from this tribunal claim. SK states that in May 2023 C1 received his full net salary from Shivaay in the normal way in the sum of £2085.16. SK says that C1 was also paid May 2023 pay from OMSR of £125.04 based on working 12 hours a week. The table handed up in closing submissions says that C1 actually worked 52 hours for OMSR that month with an underpayment of £416.

4.111 Here I prefer the evidence of C1. Whilst I appreciate the records do not show C1 directly giving the money to SK, the contemporaneous activity in C1’s bank records are supportive of what he says happened about reimbursing nearly all of his monthly pay back to SK in cash. Also supportive is what C1 says happened with his pay thereafter, set out below and culminating in C1 and C2 eventually taking photographs of cash addressed to C1. On the balance of probabilities I find that SK did convince and manipulate C1 into giving back to SK nearly all of the payroll payment being made in the name of Shivaay, to in effect cover what SK told C1 were deductions along with working fewer hours. On balance I do not find this change in the pay regime is convincing evidence that C1 was in fact working at Shivaay, or that C1 had been working there all along. Instead it is part of the pattern of SK since January 2023 giving C1 various items of paperwork in the name of Shivaay, but telling C1 that it did not really matter and that in reality C1 worked for SK. On C1’s understanding it was just a different way, on the advice of the accountant, in him reimbursing or paying deductions that he had been told all along by SK that he had to pay. C1’s travel to India

4.112 On 30 and 31 May 2023 C1 sent SK various pieces of information SK requested about his brother C2 [860]. On 4 June 2023 C1 then travelled to India. C1 says that despite his money worries he still had intrinsic faith and trust in SK that everything would be ok, including for C2.

4.113 C1 had asked SK for the Noodlebox email which SK provided on 4 June 2023 [SB51]. SK also wrote: “Don’t mention Siva. Put To Shivaay Fast Foods Ltd.” SK also said: “Also don’t cc to me”. The purpose of this exchange is not set out on whats app however SK says in his witness statement that on 4 June C1 sent an email saying he needed 4 weeks’ holiday which was approved. It may therefore have related to C1 making an official holiday request and that being put in the name of Shivaay. The exchange is, however, indicative of C1 not in reality working at Shivaay/Noodlebox. Why otherwise would C1 be asking what the email address was 10 months into his employment? There is at [303] an absence request form in the name of C1 and dated 4 June 2023 which records a holiday request from 4 June 2023 to 13 July 2023 for 12 days over June and 13 days over July. At the bottom it is marked as approved and stated “Shivaay Fast Food Ltd Noodlebox, OMSR Services Ltd Pepes.” There is no indication as to how those number of work days have been worked out over that 6 week period.

4.114 C2 says that his parents started making arrangements for his Visa process on 4 June 2023, with his parents borrowing money from relatives. C2 says coming to the UK was not his personal decision, but was his family’s decision because his parents believed that their children would have a better quality of life and their community in India believes that children coming to the UK makes them successful. C2 says that as the eldest son it was expected he should get married soon, and being in the UK would help his family find a suitable match.

4.115 C2 says that initially C1 told him to send C1 copies of certificates. C2 says he was later contacted by Mr Patel from Universal Immigration and he presumes that Mr Patel got his contact details from SK and in turn from C1. C2 says C1 told him that SK would sort everything out for C2, like SK had for C1.

4.116 C2 says he was required to attend an appointment in India for his Visa, but otherwise he was not involved in arrangements. C2 says C1 was also given information from SK with details of what to say to the immigration services, and that Mr Patel had also given him similar information. C2 says he knew his job should be a Human Resources officer because he had seen some paperwork about this and Mr Patel had also told him that his qualifications made him suitable for this skilled worker job. C2 says that he received the letter from Mr Patel found at [747] which refers to them having a discussion on 14 June 2023. C2 says that he was also sent a Certificate of Sponsorship that C1 had sent him from SK.

4.117 On 15 June 2023 C1 then sent £4500 to an individual called Pratap Mekapotha [530] who he says he had been introduced to by SK and told to send the sum to for C2’s Visa fees. SK says in his witness statement: “We have not received funds to our accounts from the claimant with regards to the Skilled Worker Visa. However, he used to send screen shots of funds transfer to third party which is nothing to do with us.” I do not find this to be true. SK accepted in evidence he knew Mr Mekapotha but said that Mr Mekapotha was also a friend of C1. That Mr Mekapotha was a friend of C1 was not put to C1 in cross-examination.

4.118 I consider it likely and find that behind the scenes SK was likely to have been a driving force behind C2’s Visa application process but for whatever reason the payment of the fees at this time was not going through SK’s name.

4.119 SK states in his witness statement that he follows a recruitment process that includes advertising the role, shortlisting, and interviewing. He says that C1 repeatedly asked to bring C2 to the country and that SK told C1 that an application had to be made via the proper channels when there was a position available. SK says that they have memoranda of understanding with consultancies to recruit from overseas and to pay commission for a successful candidate. I do not accept this evidence in relation to C2. I can see no evidence of an OMSR HR role being advertised, or C2 making an application, or the shortlisting of candidates, or an interview other than C2’s discussion with Mr Patel who was not a recruiter but an immigration advisor.

4.120 [862] is a document produced by Universal Immigration Ltd addressed to C2 dated 16 June 2023 stating that C2 had given them permission to represent C2 in his tier 2 skilled worker Visa application. The Certificate of Sponsorship details for C2 [863] are in the name of OMSR Services Ltd with an assignment date given of 15 June 2023. It gives a work start date of 15 July 2023 and an end date of 14 July 2026. It says the total weekly hours of work will be 39. It says the main work address will be in Port Talbot and no other regular work addresses in the UK are given. The employment is said to be as a human resources officer and a summary of the job description is “Human resources officers need to manage and motivate the team to ensure productivity is high. Furthermore, they need to deal with grievances and disciplinary procedures to staff. Officers need to be experienced and be able to show they can work in a highly intense environment where high quality produce must be delivered. Human resources officers need to show they have the skills to interview new candidates for job openings and undertake trainings and recruitment activities alongside salary agreements and other personal relations issues.” The annual salary is said to be £26,500.00. The certificate of sponsorship says the sponsor is certifying maintenance for the migrant. A PAYE reference is given.

4.121 C1 says that SK had told him that Universal Immigration Ltd was working on C2’s Visa process and asked C1 to contact them. He says that Universal Immigration Ltd booked an appointment for C2 for 3 July and had applied for the priority Visa.

4.122 On 20 June 2023 SK messaged C1 asking if there was any update and C1 replied referring to a PCC application form for C2 saying it would take one to two days. SK replied to say it was needed asap [872]. On 22 June SK messaged C1 saying “We need it asap. We done the application” and “there is a time limit for application.” On 26 June SK asked C1 to call him and C1 replied with a copy of the Certificate of Sponsorship saying that everything was ok. On 27 June C1 told SK the application had started and that he had sent all the documents to Druv (i.e. Mr Patel at Universal Immigration Ltd) as well [874].

4.123 On 3 July 2023 C2 had an appointment for his Visa application in Hyderabad [865]. The document about the appointment also contains a transaction receipt dated 27 June 2023 but I do not know who that receipt was issued by. It shows a payment of INR 675.00 for a courier service, INE 1200.00 for document scanning and assistance and INR 27276.00 for a priority Visa.

4.124 A UK Visas and Immigration document checklist [886] also refers to an application date of 27 June 2023 and refers to a total fee of INR 67808.00.

4.125 On 6 July 2023 SK and C1 exchanged messages about a speeding ticket that had come in for a speeding offence when C1 had been driving the company car on a different occasion. SK asked C1 if he had had any letter about the accident, with C1 saying he had not [438]. SK described this as “crazy.”

4.126 On 7 July 2023 the Visa application was approved [440]. C1 says that SK then asked him to book flights for both of them immediately and C1 sent SK £882 to book flights for them both on 10 July 2023. The payment was again made to Pratap Mekapothu [839]. C1 sent SK confirmation he had paid Pratap for the flights [441]. C1 says that SK also sent through some information to help C2 prepare for immigration checking at the airport and sent an employment contract for C2 to sign and return. The information can be found at [445] saying: “1. Need to Manager the shift which I am responsible to 2. Manage the staff tasks and ensure they are doing well and customers are happy 3. Making sure customer satisfaction at high level 4. Making sure to deal with customer complaints 5. Time to time need to work on the menus and timely offers and limited edition dishes 6. Manage stock controls and budgets through epos software or current systems… 7. Organise shifts & rotas for the staff to make sure adequate staff will be available on the… [text missing] 9. Making sure the food delivery is on time for customers 10. Making sure the inwards stock delivery are maintained on temperatures 11. Make sure the restaurant follows food hygiene standards & guidelines 12. Recruit new staff and train them accordingly.” There is also a handwritten list of pointers/questions saying: “Contract letters; Accommodation, maintenance can be given by the company so first few months we provide residence if needed; do you have your manager’s number; where are you going to work; what is your company name; when is your joining date; how did you applied this job; how much is your salary; how many hours you are work; where is she staying; who provided the accommodation.”

4.127 The employment contract that SK sent through is at [448]. It is between C2 and OMSR Services Ltd. It says that employment will start on 24 July 2023 and terminate on 14 July 2026. The job description then does not refer to a HR officer but instead says that the employee is engaged initially to perform the duties of a head chef which includes dealing with customers, taking orders, coordinating work, cooking menu items to a high standard etc. The place of work is Pepe’s Piri Piri, Port Talbot but says that following reasonable notice and consultation the employee would be expected to work at any other premises if required. The working hours are said to be 39 hours a week at £26,500 pa. The employee will be paid monthly in arrears by BACS/ cash only on request. It is said that C2 was entitled to 23 days paid holiday a year including statutory/bank holidays. It states that C2 has chosen to opt out of the pension scheme. July and August 2023

4.128 C1 says that they got to Cardiff on the evening of 13 July and that SK told him that he had to work a shift the following day.

4.129 C2 says that he rested on 13 and 14 July and that he started working in Pepe’s Port Talbot/ OMSR from 15 July 2023. C2 says he went there for shifts for two days and then started training on 17 July 2023. C2 says that before his training C1 took him to SK’s house to sign a few documents that he did not receive copies of at the time.

4.130 On 17 July 2023 C1 was sent £1080.77 into his bank account from Shivaay. C1 says he thought it was holiday pay but that SK told C1 to withdraw the money and give it to SK for taxes. C1 says that he asked SK why, if it was holiday pay, he had to give it back and that SK said that the company does not pay holiday pay. C1 says he withdrew the amount and gave it in cash to SK on 18 July. [840] shows the money being sent to C1 by bank transfer and the next day C1 withdrawing £300. He also transferred £600 to another bank account and C1 says he then withdrew that cash too. C1 says that he gave the cash to SK when he and his brother went to see SK.

4.131 SK says that C1 was paid legitimately paid £1080.77 by Shivaay by bank transfer with no requirement for reimbursements for June 2023’s salary. SK says that C1 was also paid £166.72 by OMSR for 16 hours a week. The spreadsheet handed up in closing submissions says that this was the correct figure for the month for OMSR. SK said in evidence that C1 took 9 days holiday in June and 9 days holiday in July.

4.132 On the balance of probabilities I find that C1 was told that he had to give the £1080.77 back to SK as cash. Support for that comes from C1’s bank activity at the time and when later on C1 and C2 took photographs of giving cash to SK. Given that happened I find it is also likely that SK told C1 that the company did not pay holiday pay.

4.133 On 18 July 2023 C2 signed a contract of employment with OMSR Services Ltd [191]. This states his employment will start on 1 August 2023 and terminate on 14 July 2026. The job description is now said to be Human Resources Officer “which includes dealing with Staff Responsibilities, Staff well-being, Staff Pay roll, Staff work allocations, Pay roll to a high standard etc...” The place of work is given as Pepe’s Piri Piri Port Talbot site, and states that following reasonable notice and consultation the employee would be expected to work at any other premises if required. The working hours are said to be 39 hours a week at £26500 per annum pay. Pay is monthly in arrears by BACS and cash only on request when there is a problem with their bank. Entitlement is given to 28 days paid holiday a year including statutory/bank holidays with a holiday year running from 6 April each year. That same date C2 signed a new employee form with OMSR Services Ltd trading as Pepes Piri Piri [321]. C2 also signed a change of circumstances form and a code of conduct form.

4.134 C2 was in an initial training period at Pepe’s Port Talbot. On 27 July 2023 SK asked C1 why C2 had not come to work and C1 explained C2 was unwell and C2 would come with him tomorrow. C1 also asked SK whether he needed to give availability to his other work or not, and SK said there was no need [453]. SK said that C2 was in training and needed to come to work regularly and it looked like C2 was coming when C1 or Hemanth was coming, and probably pay wise C2 would have a problem. SK says in his witness statement that C2 started work on 29 July 2023. I do not accept that, and I accept C1 and C2’s evidence that C2 started work before that date. For one, the whats app I have just referred to has SK asking on 27 July why C2 was not in work and refers to C2 having attended work prior to that, even if not with the consistency SK was seeking. SK says that C2 was not paid for July 2023 because C2 was not working. I do not agree and find that C2 was entitled to be paid pro-rata for the days he worked in July 2023 from 15 July 2023.

4.135 C2 says that he initially thought his job was as a Human Resources Officer with tasks such as managing and motivating the team to ensure productivity, dealing with grievances and disciplinary procedures, interviewing new candidates, undertaking training and recruitment, and other HR type paperwork, because that was the initial information he had been sent from SK via C1. C2 says he has experience of running his own business in India, and with his degree studies, understood this meant he was suitability qualified for the job and that Mr Patel had said he was. C2 says that when he did his initial training until 30 July 2023 he was not being trained for a HR officer position but instead was trained as a head chef in Pepe’s Port Talbot. SK disputes this saying that C2 was trained and was working in HR. I return to this central dispute below.

4.136 C2 says that he did this training in Pepe’s Port Talbot for about 2 weeks and was then sent to Kaspa’s Barry Island for training from around 31 July 2023. C2 says he was told by C1 that SK had said that C2 was not picking things up at Pepe’s and so was being sent for training at Kaspa’s Barry Island. The Kaspa’s Barry Island franchise is run by the Claimants’ lay representative in these proceedings, Ms Scott-Cook who is also C1 and C2’s current employer. It is a separate franchise to that of SK. The Claimants say that SK was planning to open a Kaspa’s franchise in Port Talbot near Pepe’s Port Talbot and that various staff, and not just C2, were sent to be trained at the Barry Island store.

4.137 C2’s evidence is that initially he was struggling at Kaspa’s Barry Island because of difficulties understanding people’s accents, but that Ms Scott-Cook and the manager then in place helped him, and he did training with them until late August 2023 because Kaspa’s Port Talbot was delayed in opening. C2 says he was told he would get £25 a day for his training days and had to pay his own travel expenses. He says other Telegu colleagues training in Barry Island were also told the same. C2 says that a lot of the Kaspa’s Barry Island staff were younger than him and had the latest phones and spoke of holidays to places like Greece or Florida with family. C2 says he was confused that they all seemed to have money and independence, and were working to pay for a good social life. He says there was also a lady from Ukraine working there who had been working in the UK for a year, having arrived as a refugee, and now was renting a 3 bedroom house and had her own car. He says he was amazed she could achieve that as an immigrant.

4.138 On 5 August 2023 C1 paid what he says was the final instalment for his brother’s Visa costs, sending a further £1500 to Prathap Mekapothu. The transaction is called “Kamal final amount” [842]. Prior to that C1 had asked SK for the bank details to transfer the amount [455] and also sent proof to SK he had paid Prathap [456]. C1 says he asked SK about his wages and that SK said that C1 would be getting nothing that month because the wages were going towards tax and VAT because C1 had not worked many hours in July. C1 says that there were a lot of staff and also a lot of his hours were going to the new manager of Pepe’s Port Talbot. C1 says that he asked for there to be no deductions that month and that SK said he would pay the wages as holiday pay so that there would not be deductions for tax or VAT. On 6 August 2023 C1 was paid £809.60 into his bank account by Shivaay [534]. SK agrees that C1 was paid £809.60 by Shivaay for July 2023. SK says that C1 was also paid £166.72 by OMSR for 16 hours per week work. The spreadsheet handed up in closing submissions asserts that was the correct amount and that it was 16 hours work in the month. SK says that C1 took 9 days holiday in July 2023. I find that C1 did take some holiday but C1 also returned to work on the 14 July and C1 is entitled to be paid both holiday pay (up to the ceiling on his holiday pay entitlement for the leave year) and for the days in the month that he worked. I do not find that C received any separate payment from OMSR as asserted by SK.

4.139 C1 says that he asked SK to give him more hours in August and SK agreed as it was a busy time of year. C1 says that in mid August 2023 SK said he would need C1 to work at the new Pepe’s he was opening in Caerphilly. C1 says SK said that if C1 agreed to work there he would make C1 manager. C1 says he thought that SK would then keep his promise and increase his pay and also let him travel to work from Cardiff. C1 asserts however that SK said that C1 had to move to Caerphilly to take responsibility for tasks such as stock checks, and deliveries. C1 says that SK said if C1 was not willing to relocate then SK would terminate C1’s employment. SK denies this. SK’s account is that C1 was working full time at Shivaay/Noodlebox and part time at Pepe’s Port Talbot/OMSR and then from September 2023 stopped working part time at Pepe’s Port Talbot and started working part time at Pepe’s Caerphilly/Mava Fast Food Limited. SK states that the Respondents also did not request or insist that C1 live in Caerphilly and deny that C1 ever moved to Caerphilly. SK said that it was C1 who had asked to work at Pepe’s Caerphilly and that with the business opening and with C1 living in Cardiff he thought that he could accommodate that request. I return to the dispute about living in Caerphilly below. But in relation to C1 moving to work at Pepe’s Caerphilly, on the balance of probabilities I prefer C1’s account that SK said he needed C1 to work there and that there was a promise of making C1 a manager.

4.140 Kaspa’s Port Talbot / SVSV Services Ltd opened on or around 25 August 2023. The pleaded allegation is that C1 says that he worked at Kaspa’s Port Talbot the night before it opened. I cannot, however, on the face of it find this allegation within C1’s witness statement, although when challenged in cross examination C1 did say it had occurred. But I still have very little information from C1 about the context. SK disputes the allegation saying that C1 never worked for SVSV Services Limited in any capacity and because it is a dessert shop C1 was not qualified or trained to perform any duties there. On the balance of probabilities I consider it likely that C1 did work there the night before to help make sure it was ready to open up. It appears to me that C1 was a trusted employee from SK’s perspective, and it seems likely to me he would get C1 to help out when it was “all hands on deck” making sure a new business was ready for opening. It was a busy time for SK because he was also getting Pepe’s Caerphilly ready for opening.

4.141 C2 says that he only worked in Kaspa’s from 31 July 2023 onwards, initially training in the Barry Island store and then working at Kaspa’s Port Talbot. C2 says that initially he was living with C1 in Cardiff and commuting, but soon after Kaspa’s Port Talbot opened SK told him, via C1, that he needed to move to Port Talbot because trains were being delayed. C2 says he therefore moved to Port Talbot and lived with a colleague, Sai Prasad. C2 says he would work shifts from 11:30am to 3pm and then 6pm to 10:30pm but by the time they cleaned the machines and closed the store it was usually 11:30pm or 12. C2 says he did not get paid after 10:30pm and did not understand this because when he knew that at Kaspa’s Barry Island the staff would close the store together to get everything done and they said they got paid until they left. He says he felt lonely and at a loose end between 3pm and 6pm. He says C1 was ordered to move to the Caerphilly Pepe’s store that was also newly opened.

4.142 SK disputes C2’s account, saying that C2 was only working in the HR role in Pepe’s Port Talbot. SK agrees that C2 did some training at Kaspa’s Barry Island but says this was arranged at C2’s request and as a favour because of C2’s interest in it and because C2 wanted to get a second job. SK says that C2 was training at Kaspa’s Barry Island in C2’s own time and was also working his normal job as HR Officer at Pepe’s Port Talbot. SK states that C2 did some training at Kaspa’s Barry Island without SK’s notice and that eventually C2 got an offer from that store and resigned to go and work there. SK denies that C2 ever worked at Kaspa’s Port Talbot/ SVSV Services Limited or Pepe’s Caerphilly/ Mava Fast Foods Limited and asserts that C2 worked solely in the HR Officer role at Pepe’s Port Talbot right through to C2’s resignation. He says he did give C2 some money towards the time spent at Kaspa’s Barry Island but that was simply a gesture of goodwill.

4.143 I find SK’s evidence to be utterly implausible. Firstly, it is inherently implausible that SK would arrange training for C2 at Kaspa’s Barry Island, then open the Kaspa’s Port Talbot store but have no intention of C2 working at Kaspa’s Port Talbot. Secondly, I find it completely implausible that C2 was actually working as a HR Officer at Kaspa’s Port Talbot as opposed to working as a grill chef for Pepe’s Port Talbot and thereafter working on deserts as Kaspa’s. Other than running a business in India C2 has no experience or training or qualifications in HR, and in particular HR in the UK. Practicing in HR in the UK involves knowledge of things like the statutory requirements for particulars of employment; how to run grievances and disciplinary processes including the requirements of the Acas Code of Practice; how to administer holiday pay in a compliant way; statutory sick pay and other statutory rights such as family leave and pay rights; how to run a payroll, and many other things. C2 did not know these things about the UK and I find it completely implausible for SK to suggest that he trained C2 in them in the sense of SK either having the skill and knowledge himself to do so or the time it would take to train C2.

4.144 Furthermore, given the small size of the Pepe’s Port Talbot workforce I struggle to understand why a full time HR Officer would be needed or what they would be doing on a full time basis. It seems far more likely to me that this was not a genuine vacancy or need for a genuine appointment. With that it is far more likely that in reality C2 was put to work behind the counter at Pepe’s Port Talbot and then Kaspa’s Port Talbot. Support for C2 working at Kaspa’s Port Talbot also comes from the fact that on 13 September 2023 C2 signed a new starter form with SVSV Services Limited trading as Kaspa’s Port Talbot [326]. September 2023

4.145 On 7 September 2023 Pepe’s Caerphilly opened and C1 says he worked incredibly hard over those first few days to make it a success. I accept C1’s evidence on that point.

4.146 On 8 September 2023 C1 was paid £2035.56 by Shivaay [538] in respect of August 2023. C1 says that SK told him to reimburse £975 towards tax and VAT in cash. SK denies this. SK says that C1 was also paid £166.72 by Pepe’s Port Talbot/ OMSR. He says in the spreadsheet handed up in closing submissions that C1 was underpaid by £500 because C1 actually worked 64 hours at OMSR in August 2023. I accept C1’s evidence that he was paid £2035.56 but was required to reimburse £975.

4.147 C2 says he was paid in September £1035 in cash which he understood was for his training in Port Talbot Pepe’s and Barry Island Kaspa’s. He says it was given to him by Madhavi the Kaspa’s Port Talbot manager. SK disputes this stating that C2 was paid £2069.09 by OMSR by way of a net salary payment. There is no record of that sum being paid to C2 by way of bank transfer that should happen under a Skilled Worker Visa. On the balance of probabilities I prefer the evidence of C2 to that of SK and find that C2 received £1035 in cash. It accords with my other findings in this case about in general pay not being what is set out on payslips. Furthermore, I consider it likely that if C2 never worked in a HR Officer role that it was never SK’s intent for C2 to do so, and therefore never SK’s intent to actually pay the salary level he had to commit to in the Certificate of Sponsorship for C2.

4.148 On 14 September 2023 SK sent C1 payslips for himself and C2 for August. C1’s is from OMSR saying he worked 10.42 hours at £16 an hour totalling £166.72, with deductions of £33.20 for tax and a net payment of £133.52. It says the gross total pay for year to date was £791.92. Even on SK’s own account the payslip was wrong because SK says C1 in fact worked 64 hours at OMSR. C2’s payslip is from OMSR Services Ltd. It gives a basic pay of £2208.33, national insurance deductions of £139.24 with net pay of £2069.09. C1 says that the payslips did not resemble what they were actually paid but that he knew it was not worth asking. I accept that evidence and do not find (as set out above) that these were the sums actually ultimately received by the Claimants.

4.149 C2 says that he was confused by his pay and started to find out about his tax deductions, but that C1 then told him that they needed to pay employee tax, employer tax, VAT and NI tax all in their wages. C2 says that he learned from colleagues in Port Talbot that all employees who were working for SK were paying this every month. C2 says it meant that they had no money and he remembered the money he saw the Barry Island staff have. C2 says he asked some British friends and they said there was no such thing as VAT on payroll and that you did not give your employer tax after you were paid, they take it before, so you what you get you keep. C2 says that people used to pay SK cash every month and that these were people from the same Telegu community as him. He says that he asked Madhavi as she had also trained in Barry Island and he expected she would know about these things as a manager. C2 says that he later learned that Madhavi had contacted SK and he was told within a few days by C1 that he should move to work at Pepe’s Caerphilly. C2 says that he had enjoyed working with Kaspa’s, was confident having had such intensive training, and felt it was some sort of punishment, but did as directed and moved to work at Pepe’s Caerphilly. C2 says that he had no choice as his employer had the power to revoke his Visa at any time. C1 says that SK also contacted him, cross about the fact that C2 had been asking questions and causing chaos in Port Talbot.

4.150 SK denies this saying that C2 only ever worked at Pepe’s Port Talbot. SK says that C2 has never been employed at Pepe’s Caerphilly/ Mava Fast Foods Limited and the only connection is that C1 would work there and that C2 would meet his brother there regularly. SK denies there was ever any querying of VAT on payroll and denies that there were any deductions happening that would be questioned or that C2 was ever labelled a troublemaker. I have found the deductions were happening. Within that context I consider it likely and find that C2 did start to question the deductions he was facing but also was being told by C1 that that was what the system was. I consider it likely and find that this would not have been well received by SK and it is likely that SK did then decide that it would be better to move C2 to work mainly from Pepe’s Caerphilly where C2 would be more under the control of C1 who had been generally accepting of what SK was telling him. By way of example, a rotacloud email shows C2 being allocated a shift as back staff as Mava Fast Foods Ltd in Caerphilly on 18 September 2023 [966].

4.151 C1 says that at Pepe’s Port Talbot and Pepe’s Caerphilly he was surrounded by people working from his community. He says some were on a Skilled Worker Visa and some were thinking of switching to it, and that one of them asked how tax worked and how much C1 was paying SK. C1 says that SK learned about it and was furious and warned C1 not to talk about tax to any new employees. I find it likely that SK did give C1 that warning. On 10 September 2023 SK messaged C1 saying “why are you discussing Vijay work with chai wala guy. Don’t be doing this again.” C1 said they were both room mates and “he only asked me about his Visa thing.” SK said “no I got the complaint.” C1 said “I said its not in my hand.” SK said “Pls treat everyone same.” October 2023

4.152 C2 says that he struggled to access to access the rota app that all staff had access to and he had raised this with C2 and SK. He says that he thinks it was SK’s way of punishing him and that it meant he did not know until the last minute what shift he had or where he would be working. C2 says C1 largely moved him to Pepe’s Caerphilly but that he was also still being put on the rota back in Port Talbot. C2 says that his shifts were often split so overall he was getting less hours. For example, there is a rotacloud email showing the allocation of a shift at Kaspa’s Port Talbot with SVSV Services Ltd on 2 October 2023 [951] and then on 3 October C2 being allocated a shift as back staff at Caerphilly with Mava Fast Food Ltd [977]. On 12 October 2023 C2 was assigned a shift as kitchen staff at Peri Peri Port Talbot with OMSR Services Ltd [965]. On 3 December 2023 rotacloud messaged C2 at 11:17pm telling C2 he was working 3 to 9:30pm the next day in Port Talbot Pepes [992]. These are just some examples. The rotacloud records were not explored by either party with the other in cross-examination. But C2’s bank records show him regularly spending money in Caerphilly and these were put to SK in cross examination. SK’s view was that this was all part of C2 building a case against him with a long term plan to get a job at Kaspa’s Barry Island.

4.153 SK denies C2 was working across multiple locations and also says that rotas are only occasionally changed at the last minute when someone is ill or fails to come to work last minute, and that this will be communicated verbally to check staff availability. SK says staff are never forced to work without their acceptance.

4.154 I prefer the evidence of C2 and looking also at his bank records and the rotacloud records find it is likely that he was being sent to work across multiple locations, sometimes at late notice. I consider it likely that C2 was also regularly being given split shifts and shifts with a late finish. I consider it was making C2 increasingly unhappy over time.

4.155 On 3 October 2023 C1 received £2035.56 into his bank account from Shivaay [541]. C1 says he was again told to reimburse SK £975 towards tax and VAT in cash. C1 says he remembered SK had told him that VAT was only deducted for one year so he asked why he was still paying VAT. C1 asserts that SK said that from the next month C1 would be paid a fixed amount of £1500 as manager of the store. C1 says he was disappointed because it was not what he had been promised or expecting, and he was worried about clearing his debts and sending money back home. C1 says he told SK he was struggling to keep up with his rent and bills and that SK said it was a “fixed bond” he paid to staff in managerial positions. C1 says SK also said C1 would receive a £300 bonus that month for his exceptional performance in the opening week of the Caerphilly Pepe’s. C1 says he never received it.

4.156 C1 says that SK also raised C1 moving to Caerphilly and living in a flat VK had rented. C1 says SK said the Caerphilly accommodation would be shared with some of the staff members and the rent would be £750. C1 says he told SK he would think about it. As already stated, SK denies that C1 was ever directed or encouraged to move to Caerphilly or that the move to the flat happened. In terms of pay SK says that C1 was paid £2035.36 salary by Shivaay for September 2023 and £122.54 by Mava Fast Foods/ Pepe’s Caerphilly for 12 hours a week. The spreadsheet handed up in closing submissions asserts that C1 actually worked 52 hours at Pepe’s Caerphilly that month and has been underpaid £420.

4.157 C2 says that when he received his October pay (for September’s work) £2090.09 was paid into his bank account from OMSR and that SK told C1 that C2 needed to reimburse SK £1315 for taxes and VAT. C2 says that, as shown in his bank statement at [929] on 7 October he withdrew £2000 in cash for his reimbursements and to help C1 also pay his reimbursements. SK says that C2 was paid net salary of £2069.09 with no requirement for any reimbursements.

4.158 On the balance of probabilities I accept C1 and C2’s evidence about what they were paid and what they were told they were required to reimburse. It accords with my other related findings in the case. Support also comes from the bank records.

4.159 On 16 October 2023 SK messaged C1 saying: “pls update on the room today” [468]. C1 replied: “I’ll speak with venu Anna about bills and I’ll update you Anna by tonight.” C1 says that he spoke with VK and learned VK had rented the property and was sub letting it. C1 asserts that VK said that bills were excluded. C1 asserts it was a single bed studio/small 1 bed flat that was unfurnished. C1 says that he told VK it was too expensive because he had compared it with other properties online at around £600 and that VK was cross and said C1 had no option other than to move in. C1 says that he collected the keys from the estate agents on 17 October following instructions from VK, and moved in on 18 October with another employee also moving in that day.

4.160 C1 and C2 say that in due course C2 was also directed to move into the flat and there were three people living there, and at one time four people living there. They say that sometimes student cleaners also used it overnight taking the number up to 6. C2 says he paid to install wifi in the flat to make it more bearable. [608] is an email to C2 from BT about sending wifi equipment to the address of the flat dated 23 October 2023.

4.161 As already stated SK and VK deny that either C1 or C2 were asked or pressured to move to Caerphilly or that C1 or C2 ever did move there or pay any rent for a flat to VK. It is denied that either Claimant was provided with unsuitable accommodation in Caerphilly or that they were charged an inflated rent. SK said in evidence that the message about updating him on the room related to a question about whether another staff member could move into a room in C1’s Cardiff flat. VK says he had rented the flat in Caerphilly for himself. VK says that with his consent the flat was occasionally used by staff in breaktimes as somewhere to rest, but that it was never intended as accommodation for employees, and that no rent was ever taken from anyone for it. VK denied any knowledge of wifi being installed at the property.

4.162 On the balance of probabilities I find that C1 and later C2 were directed to live in the Caerphilly flat. Support for this comes from the exchange between C1 and SK on 16 October. Given the content of the exchange I find it unlikely that C1 and SK were referring to a different room for another member of staff. Support also comes from C2’s purchase of wifi equipment at that address. It also comes from the January 2024 whats app exchanges between C1 and VK about plumbing issues with the property set out below. Support also comes from the post dismissal exchanges between C1 and SK about outstanding rent that again are set out below. The flat was unsuitable given how many workers were living there and/or using the property. I do not know how much VK was paying for his rental of the property as the Respondents declined to disclose this saying it was irrelevant. But I accept C1’s evidence that they were paying over market rate given that VK would have been receiving £750 to £1000 a month for the rental from the workers, when C1’s research at the time was that the market rate was around £600. I find that C2 had moved in by late October given the date on the wifi equipment order.

4.163 C1 says that he and C2 then saw each other a lot more and over time C2 started telling C1 that there was no such thing as VAT on payroll and that SK was scamming them. C1 says that initially he did not believe C2, thinking C2 was mistaken because C2 was unfamiliar with the UK. November 2023

4.164 C1 says that on 9 November 2023 he was paid his October pay of £2035.36 by bank transfer and that SK again asked him to reimburse tax and VAT in cash in the sum of £750. C1 says he asked SK about the £1500 and SK said it would apply from the following month. C1 says he asked for payslips as he had not had any since January 2023 and that SK said he did not have to explain anything to them, if they did not like it they could both leave, and SK would terminate their Visas which would get them deported to India. C1 says he felt he had no choice other than to keep quiet and reimburse the specified amount in cash. He says he also paid £500 rent for himself and his brother to VK in cash. C1 says he sublet his own Cardiff tenancy to a friend to cover the rent. This was the property that SK was guarantor for.

4.165 SK says that C1 was paid £2035.36 in October 2023 by Shivaay and £168.80 by Mava Fast Foods. The spreadsheet handed up in closing submissions asserts that in fact C1 worked 64 hours at Mava that month and that C1 was underpaid £498. SK said in evidence he did not make and knew nothing about an offer of £1500 a month. SK in evidence denied ever threatening to terminate anyone’s Visa.

4.166 On the balance of probabilities I find that C1 was told he needed to make the cash reimbursement from his pay. I also find it likely that there were occasions on which SK said, when challenged, that if C1 did not like things that he could terminate his Visa. I also find it likely that the risk of this was something that in general weighed in the mind of C1 in his interactions with SK. Later emails show C1’s concerns about the risk of their sponsorship and Visas being terminated.

4.167 C2 says he received October’s pay on 6 November 2023 as a bank transfer from OMSR Services Ltd of £2001.55 and was told he had to reimburse £915. C2 says that he withdrew £200 and £100 in cash in Caerphilly on 7 November and transferred £600 to a colleague who gave him her bank card to withdraw it. He says he transferred £500 to C1 for the remainder and to help C1 cover his [931]. SK disputes this stating that C2 was paid his proper pay of £2001.55. On the balance of probabilities, I again prefer the evidence of C2 and find that he was required to and did reimburse £915 cash to SK.

4.168 C2 says that the changes with the location of where he was working continued and that he later realised it was a punishment. C2 says he was rostered to clean the store at midnight and given irregular shifts, with shifts being changed last minute. C2 says that the majority of the shifts he was given were cleaning the Caerphilly store where he was asked to come in for 11:30am and then have a break for 3 hours and then work 6pm to 10:30pm and then continue to 2:30am cleaning the store. C2 says at the last minute he was also sent to different stores. C2 says that he felt like a slave and in November the same pattern repeated including being asked to go to Port Talbot to do some shifts for a few hours, when he would have to cover his own travel expenses and spend his own time travelling which could take 2 hours and needing him to change two trains. SK denies this, stating that C2 was only working in Pepe’s Port Talbot. SK says that C2 was never asked to clean the store. Again, here I prefer the evidence of C2 for reasons already given.

4.169 C1 says that in mid November 2023 his housemate was applying for a driving license and the housemate saw online he had points. They therefore looked at C1’s record. C1 says he found out that he had penalty points and a fine for driving a vehicle without insurance that he had not received any correspondence about. The fine was £1322. C1 says he spoke to SK and SK said C1 had to pay it because C1 had crashed the company car. C1 says that SK had changed from having said at the time that it was sorted, and taken care of. C1 says that his family in India had been hoping that C1 and C2 would send them money to pay off some of the debt but they had not been able to because they were paying their wages back to SK. C1 says he asked SK for some help, but that SK said if they did not like it he could terminate their arrangements. C1 says he therefore kept quiet again. C1 says he told C2 and they had an argument with C2 saying again C1 was being scammed. C1 asserts that SK started treating them differently and that his and C2’s hours were reduced because they had been questioning SK. December 2023

4.170 On 6 December C1 messaged SK asking about C2’s pay. C1 chased again on 7 December [471]. On 8 December C1 asked SK for payslips. C1 says that SK told him to reimburse £915 towards tax and VAT from C2’s pay. C1 says that C2 was very angry with C1, and they had regular arguments, with C2 saying he wanted to go back to India as there was no point working in the UK and paying all these taxes. C1 says he was saying to C2 it would bring shame on their family.

4.171 C2 says that he received November’s pay on 7 December in the sum of £1912.16 from OMSR. C2 asserts he was told again his reimbursements were £915. He says he transferred £210 to C1 on 7 December so that C1 could withdraw it, and £1150 to three of C1’s friends for them to withdraw the cash, and transferred £600 to C1 to help C1 with his reimbursements. C2 says they were living on C1’s credit cards for food. SK denies this stating that C2 received his proper pay of £1912.15.

4.172 [472] is a photo taken in Caerphilly on 8 December 2023 at 11:04pm of some cash and a note saying it is the sum of £915 from Kamal (C2) to SK. SK denies any knowledge of this. In accordance with my earlier findings and this photographic evidence, on the balance of probabilities I find it likely that C2 was told he had to reimburse £915 in cash and that C2 did so.

4.173 On 10 December (the date according to C2’s witness statement) C2 messaged SK asking not to be given shifts in Port Talbot because every time he travelled he would catch a cold and cough, and after 9pm at night trains were getting cancelled or delayed. SK replied to say it was not possible and C2 would be working in Port Talbot [926]. At this time C2 was still being rostered to work some shifts in Pepe’s Piri Piri Port Talbot (for example on 4 December, 5 and 6 December [991, 992]). Again I consider this message exchange is evidence to support that C2 had moved to Caerphilly and was mainly working in Pepe’s Caerphilly but was still being sent on shifts in Port Talbot. It is evidence that is contrary to SK’s assertion that C2 was only working in Pepe’s Port Talbot. If so, why would C2 be asking not to be given shifts in Port Talbot?

4.174 C1 says that on 12 December 2023 he got paid from Shivaay and was told to reimburse £780 towards tax and VAT. On 11 and 12 December he had chased SK for his pay [473]. C1 says that this time he took a photograph of the money envelope and gave it to VK. [474] is a photograph taken on 23 December 2023 in Caerphilly which again shows a bundle of cash and has a note saying cash of £780 from C1. SK says that for November 2023 C1 was paid net salary of £2035.56 by Shivaay with no requirement for any reimbursement and £120.04 by Mava Fast Food. The spreadsheet handed up in closing submissions says that there was an underpayment of £463 by Mava that month. On the balance of probabilities I find that C1 was required to reimburse £780 in cash. It is supported by the findings made already above and by the photograph of the annotated cash payment. VK denied receiving any money from C1 or C2 saying that SK dealt with all financial matters and not him. On the balance of probabilities I conclude that where the Claimants say cash payments were handed in via VK then that was likely to be the case. I can see no benefit to the Claimants in asserting that if it was not true (compared to handing over the cash in some other way). Further it was VK that was on the scene regularly in Caerphilly running the business day to day.

4.175 C1 says that he also paid £500 to VK for his and C2’s rent. C1 says that SK then said (as already mentioned above) that another new staff member from India should live with them and that there were 4 of them living in the small flat for a month before the new employee left. C1 says he understood from the new staff member this was after finding out about tax and VAT which had not been mentioned before the Visa. C1 also says that they were also told that when there was bad weather the cleaners should also be able to stay in the flat (again already referred to above). This was because the cleaners finished work at 2:30am and there was no public transport back to Cardiff, and when it rained it was too cold for them to stay in the back of the shop. C1 says this happened about 6 to 7 nights in a month. C1 says collectively they were paying £750 to £1000 a month depending on how many were staying, plus bills and that VK knew how many were in the flat because he was in the business daily and C1 paid the rent directly to VK. I have already found that C1 and C2 were living there and paying rent and I accept this evidence from C1.

4.176 C2 says that one night he checked his rota for the next day before going to bed and awoke to a phone call from SK shouting at him saying he was late for his shift and during the night his hours had been changed on the rota. C2 says that was the day that he felt so tortured and humiliated he had suicidal thoughts that they were being treated as slaves with no proper work, no proper wages and no proper house to live in. C2 says he saw no point in continuing because he knew the shame it would bring on his family if he returned to India. C2 says that the position remained that he was not working any HR tasks at all but was doing head chef tasks and cleaning the store. C2 says that he would tell C1 he wanted payslips and that C1 would say he would ask SK. C2 says that he would argue with C1 that SK was scamming them, but it was like C1 was brainwashed and was focussed on the opportunity to be in the UK, and kept making excuses for SK. C2 says he could not get through to C1 and that being around other Telugu colleagues did not help because they were all in the same situation and everyone was scared that without SK’s support they could be deported to India. SK denies ever shouting at C2 or anyone and says that last minute rota changes were rare and always done with consent.

4.177 I think it likely that C1 and C2 were regularly arguing as they describe, with C2 trying to convince C1 that he thought they were being scammed and with C1 reluctant to see it. I think it likely that both of them were very down and stressed due to all of their circumstances, including trying to live in such a small, unfurnished property. I think it likely that C2 found his life to be miserable and not like the dream he thought he had been sold and did reach a particular low, including when he felt that SK was shouting at him. C1 was stressing about whether his brother would quit and return to India with all the implications of that including shame and the financial consequences for his parents and whether SK would also terminate C1’s Visa.

4.178 C1 says that he saw on Indeed that Kaspa’s in Barry Island were looking for a manager and he decided to go in with his CV. Ms Scott-Cook later contacted C1 and they met up. C1 says that he did not mention his brother, but said that he said he needed sponsorship. Ms Scott-Cook told C1 that she was not a sponsor but was looking at going through the process of becoming one given shortages in finding experienced candidates. C1 says he returned to Caerphilly feeling trapped. I accept that evidence and do not find that C1 was offered a job at that point in time. January 2024

4.179 On 4 January 2024 C2 was paid his December pay from OMSR of £1837.09 [602]. C1 says by this time C2’s hours had been completely cut down and C2 was only being given cleaning hours after the store closed. C1 says that SK said that they needed to reimburse £1350 from C2’s pay towards tax and VAT. C1 says that he was scared to tell C2 because after paying £250 to VK it would leave C2 with around £210 for the month. C1 says C2 was furious but they withdrew the cash and gave it to VK. There is a photo of the cash again at [477]. C1 says that night they had a huge argument and C2 said he was going to quit and go back to India. The next day C2 left the flat and went to stay with friends.

4.180 C2 likewise says that his December’s pay was £1837.09 [600] but because he had not worked so many hours he was told his reimbursements were £1350. C2 says he transferred £600 to C1, he gave C1 his card to withdraw £300 on 5 January, and he transferred £200 and £300 to a colleague to withdraw the cash. C2 says he was also expected to pay £250 in rent and could not pay this because he did not have enough money. C2 says that this was the final thing for him and he argued with C1 and decided to go see friends to get away from C1 while he planned to go back to India. C2 says he had a shift rostered for 5 January but did not attend and told C1 he was not going to work any more.

4.181 SK says that C2 was paid December pay of £1837.09 with no requirement for any reimbursement. Again I prefer the evidence of C1 and C2 as to the requirement for a reimbursement. It is supported by C2’s bank records and the picture of the cash from 4 January 2024.

4.182 C2 went to his friend’s place for a time. C2 says he later learned that C1 sent emails in his name with an email of resignation and an email to request sick leave that C2 had nothing to do with.

4.183 C1 says he told SK that C2 had left and SK said he would terminate C2’s Visa soon. C1 says they agreed that C1 would try to get C2 to stay and that C2 would be classed as sick for the time being. C1 says he also asked SK about his pay and SK said he would sort it out and that he also asked for payslips. C1 says he was very anxious about what was going to happen, and was having dark thoughts. He says he told SK he was also thinking about going. SK was in India at the time. C1 says SK tried to convince him to stay and that SK said he would speak to C1 on SK’s return. C1 says SK told him to work until SK got back and to consider the period as a notice period. C1 says that he knew he was the only trained grill chef with SK in India and if he left immediately the store would have to close leaving his friends without work, so he stayed for that time.

4.184 On 8 January 2024 C1 sent an email to SK at the Noodlebox email address [43] saying: “I am writing to formally inform you of my resignation from my position as chef at shivaay fast food ltd. In accordance with the period of notice agreed within my contract, my last day will be 10/02/2024. I would like to take this opportunity to thank you for all of the opportunities presented to me within my period of employment. I have enjoyed my time working at shivaay, however, in the best interests of my career, I feel the time is right to move on. Finally, if there is anything I can do to ensure a smooth and efficient handover process, please do not hesitate to let me know. I wish you all the very best for the future.” C1 says that SK told him to send the email, that the leaving date would be 10 February as per C1’s contract, that C1 had agreed this. C1 says that SK told him what to write in the email. C1 says it was a polite conversation with SK and SK spoke about leaving on good terms.

4.185 C1 says that the following week he had not had his December pay and was stressed about bills. He says that SK told him he could take employment working 40 hours a week elsewhere and just work minimal NI hours for SK if he stayed. C1 says he thought this would give him a good income and he did not know that it would be breaking immigration rules. On 15 January 2024 C1 sent a further email to the Noodlebox email address saying: “As of our recent conversation I have decided to continue with shivaay. But I have been going through financial crisis so please allow me to work for 20 hours NI as per the rules in other food industries. Grant me permission, Thank you.” C1 says that SK had again told C1 what to write in the email.

4.186 On 20 January 2024 C1 messaged SK asking if the coming week was his “last working days here” and “you told me I can leave [words missing] after your return.”

4.187 On 22 January SK messaged C1 to ask C2 to send the email asap about his not coming to work for the past 3 weeks. SK told C1 that the email should be sent to Pepes’ Port Talbot email [479]. On 23 January 2024 an email was sent from C2’s address, written by C1, to SK at Pepe’s Port Talbot saying: “I am writing to inform you that I am feeling unwell from past 3 weeks and unable to come into work for a few days. I have seen a doctor who has advised me to take some rest and recover at home…” C1 says that SK said C2 needed to do this to generate sick pay on a payslip. C1 says he sent the email in C2’s name because he could not cope with any more arguments with his brother.

4.188 On 23 January 2024 there was a further email from C2’s email address saying: “I am writing to formally resign from my position as HR (Human Resources officer) at OMSR Service ltd, I want to express my sincere gratitude for the opportunities and experiences I have had during my time here… After careful consideration, I have decided to pursue new opportunities that align more closely with my longterm career goals… I am committed to ensuring a smooth transition and will gladly assist in any way possible during this period…” [115]. There was a reply at [115] to say that under the releasing procedure they had to meet in person.

4.189 C1 says that SK had said that the two of them should meet with SK on 30 January. C1 says he was hoping that SK would not terminate their Visas immediately and would at least give them 60 days. They met on 30 January. C1 says that SK asked their reasons for leaving and they said it was the tax and VAT. C1 says that SK asked them to sign an employment contract with Mava Fast Foods Limited trading as Pepe’s Caerphilly and put a date of September 2023 on it. [206] is a new starter form for C1 with Mava Fast Food Ltd which on the face of it gives an employment start date of 7 September 2023 and being signed by C1 with a given date of 15 September 2023. The box is ticked to say that it is now C1’s only job but since last 6 April he had had another job. I accept what C1 says here.

4.190 C2 says that he went with C1 to see SK on 30 January because SK said they needed to meet personally, and he signed some papers but does not know what they are. C2 says he was not having much contact with C1 at the time because of their arguing and C2 thought that C1 could not see reality. C2 says he only later learned that C1 had also resigned but had worked a month’s notice and was shocked when C1 told him C1 had left. I accept what C2 says here.

4.191 C2 says he received no pay for the days worked in early January or any holiday pay on termination of his employment, or indeed sick pay. I accept that is correct; there are no records of the funds being sent to C2. By this time the relationship had broken down and to me it is logical if SK was genuinely sending C2 funds he would keep good records of it.

4.192 C1 says that SK said he was opening another Pepe’s in Ponty and that this time C1 could be a proper manager with his own team. C1 says that he was tired of the lies by that point and said no, he would be leaving. C1 says that SK then turned on him saying he needed to pay £16000 towards the company car that C1 had crashed. C1 says that he was baffled by this because SK had initially said everything was taken care of, but SK had now changed his word. C1 says SK said there was still a £11,000 loan on the car and that SK would link it to C1’s bank account to take a direct debit every month. C1 says he said he would not agree because it was not his decision to drive the car but had been ordered to by SK and that at the time SK had said nothing would be asked from C1. He says SK said that at the time of the accident C1 was in his employment, but as C1 had resigned SK was entitled to ask C1 to pay for the car. C1 says that C2 had known little about the car crash until that point and that C2 was cross asking SK what would SK’s reaction have been if something major had happened to C1. C1 says that SK said C1 would get his December and January pay in February as a final settlement.

4.193 On 30 January 2024 Pepes Piri Piri wrote to C2 saying he had been on holiday since the first week of January and was now on sick leave and they needed a doctor’s sick note [119]. February 2024

4.194 On 5 February 2024 an email was sent from OMSR to C2 saying: “Thank you for the meeting you came last week, We will continue to revoke your Tier 2 sponsorship and we wish you all the good luck for your future endeavours” [115]. C1 sent a message to SK saying: “Anna please don’t do instant termination as we don’t get enough time please do normal where we can have 60 days of time.” SK replied “Sure Kishore” [485]. Over the next few days C1 was then chasing SK for his pay.

4.195 C1 says that on 5 February he was expecting to be paid but was not. C1 says he saw C2 was right and that SK was constantly lying to him. He says he packed his things and left the Caerphilly flat. He says he returned to Caerphilly on 9 February 2024 and met VK who gave him £1635 and he was required to sign letters and a cash slip. C1 took photographs. One was a form dated 31 December 2023 addressed to Shivaay saying he had received his full December salary by cash [481], with the same for January salary [482]. C1 also took a photo of a cash receipt document for £1635 [483] dated 31 January 2024. C1 says he was told this was his December and January pay. C1’s bank records showing him paying £1000 into his account in Caerphilly on 9 February 2024. In evidence VK denied any knowledge of being involved in this at all.

4.196 SK says that C1 was paid £2035.56 by Shivaay for December 2023 pay and £2064.40 for January 2024 pay. There is no record of a bank transfer. I do not accept SK’s evidence and find that C1 instead received the £1635 that C1 refers to. SK says that C1 also received £187.56 from Mava for December 2023 pay and £121.39 for January 2024 pay. Again I do not accept that C1 received those amounts. The schedule handed up in closing submissions says that C1 was underpaid £478 by Mava in December 2023 and £441 in January 2023. It also asserts that C1 was paid a further £166 for 16 hours worked in February 2024. I do not find that sum was paid to C1.

4.197 C1 says that he then spoke with SK by phone and that SK stated he would be instantly terminating their Visas and that he asked SK not to do that but do a normal termination where they had time to find new jobs and sponsors. C1 says he also asked for his P45 and payslips and that SK also said that they need to pay the rent for January. C1 says he had no money to pay this and he felt very lost and full of sorrow about his situation and what to do next.

4.198 C1 says that a day or two later Ms Scott-Cook phoned him saying she had applied to become a sponsor and was he still interested in the job. He says C2 overheard the phone call and said that Ms Scott-Cook was a friendly, helpful person and so C2 contacted Ms Scott-Cook asked to meet. They then both went to meet with her. C1 says that Ms Scott-Cook said she was just waiting for final confirmation to be a sponsor. He says that she showed them the Visa fee costs and they were much lower than they had paid to SK. He says he told her he would need to arrange money from India to pay her and that she said she would help but that C1 should not pay her but pay UKVI directly. C1 then arranged funds from India which he says took a couple of weeks. C1 and C2 said that initially Ms Scott-Cook hired C1 but she wanted to hire C2 too. Initially C2 wanted to go back to India but after a couple of weeks C2 thought about it some more and decided to take up the opportunity. I accept that evidence.

4.199 SK agrees that C1’s last day of employment was 11 February 2024. SK’s perspective is that C1 was treated well within C1’s employment, with no complaints of unfair treatment or discrimination. SK asserts that C1 left because he found a better opportunity and that the claimant have manufactured a tribunal claim against the Respondents. SK also asserts that C1 started looking for employment at another place to avoid having to compensation for the loss of the company car. SK denies dictating the content of emails set out above and says he had only enquired as to what C2’s situation was when C2 had not worked for several weeks without contact, and when C1 said that C2 was off sick, says that he simply asked C1 to ask C2 to send a communication about being sick.

4.200 SK says that C2 was in control of his own resignation with C2 not coming to work, not making contact and planning to start work with another employer. SK says that C2 found a better job opportunity and resigned for that reasons, and there was no unfair treatment or discrimination. SK says that C2 has brought the tribunal claim as a way to gain financially. SK says that C2 was compensated for 12 days holiday in January and February and that with bank holidays C2 took 16 days of leave, which was more than the accrued holidays C2 was entitled to in the pro rated year to his termination of employment.

4.201 On 22 February 2024 C1 emailed SK at Noodlebox saying he had made the decision to resign from his position at Shivaay Fast Foods Limited. He says in his previous email he gave his notice period and it lasted until 11 February 2024 and he had done his job in the notice period. C1 said he wanted to express his gratitude for the opportunities and experiences he had, and he had been presented with a new opportunity he felt was the right step for career growth. C1 said in the email he was committed to making it a smooth transition and asked for his holiday pay to be settled [46]. Shivaay Fast Foods responded on 11 March to say sorry to hear C1 was leaving the company and they would now revoke the certificate of sponsorship [46]. SK says C1 was instructed to send this email despite having already left, because of the earlier series of emails by the Claimant and in particular the Claimant’s earlier email saying he wanted to stay on minimum hours and that clarity was needed.

4.202 On 23 February 2024 C1 messaged SK asking SK to forward the email of his and C2’s and both previous months payslips. March 2024 and thereafter

4.203 On 2 March C1 asked again for payslips [487]. C1 says that on 9 March SK asked him to phone and that C1 asked for his P45 and payslips as it was required by his new employer. C1 asked again on 30 March for payslips and a P45 and again on 1 April [488]. C1 says he started his new employment at Kaspa’s Barry Island in about mid March 2024. I accept this.

4.204 On 1 April SK replied to say: “When are you going to give the cash amount”; “Rent amount”; “Please come and see me.” C1 replied “Once I get my VAT money back from you I’ll give the cash amount” [489]. On 10 April C1 asked again for P45 and payslips. SK asked to meet. C1 said he was not available. SK said in evidence that the reference to “rent” and “cash” were typographical errors and he was referring to the car repayment. I do not accept this, and I consider it to be a further piece of evidence that C1 and C2 were paying rent for the Caerphilly flat.

4.205 There was ongoing back and forth between C1 and SK that I only briefly summarise. On 14 April C1 sent an email chasing payslips and saying that due to the way he was treated he had gone and got another job and his new employer was asking for the P45 and payslips. C1 said otherwise his option was to go to the employment tribunal and he had proof about the way the Respondents were collecting money from employees and how much employees were being paid. He said he was owed holiday pay [48]. On 14 April C1 said: “you took advantage of us with doing fake promises treated us as slaves.” SK said: “Big joke is that what you took the amount with fake promise.” SK said: “Kishore you know what I done for you” and C1 said: “I have also done a lot Anna… I trained all the staff opened two stores.” SK said everyone had worked hard and not only C1 and that everyone had trained everyone else. SK said: “Even I am not interested in anything give the car amount which you crashed and amount you taken.” C1 said: “I lost my 3 yrs of license I have been banned and penalty only because to drop your staff at the workplace.” SK also said to C1: “Venu might be kind enough to leave but I am not the person to leave the amount you taken and owe.” SK later said: “No one has done like this by taking the money and running away.” C1 said: “no one has done looting money from staff wages like you did every month. VAT 200£ Employer tax 450£ NI pay 10.42£.” SK asked if that was C1’s script and C1 said he was not making any movie, but asking for his rights as per rule. SK also said that C1 had taken Hemanth’s amount and had run away. C1 said he had not taken money from others like SK did with his employees and: “Still your collecting 935£ tax from employees by bluffing them.” SK again asserted that C1 was following a script. C1 continued to question whether SK was collecting VAT and tax from eight other employees.

4.206 On 17 April C1 received his P45 and payslips from Shivaay found at [306-316] and [334]. C1 disputes that he received the amounts identified in those payslips. C2 was also sent payslips and a P45 [327-341] from OMSR. Again C2 disputes they were the sums he actually received.

4.207 On 4 May 2024 SK sent a further message saying: “How long I have to wait for the car amount.” SK said C1 had taken the car keys illegally without permission which was a criminal offence [507]. C1 said SK had given him the keys to drop a staff member to work and he did not take any keys to meet his personal needs. C1 says that SK also accusing him of reporting them to HMRC.

4.208 C1 says that Ms Scott-Cook helped them with various matters including finding new accommodation, commencing the tribunal proceedings and making contact with the police. C1 says that the police ultimately stated their experiences did not meet the threshold for modern slavery. Ms Scott-Cook also assisted in making contact with the Magistrate’s Court about the court proceedings heard in C1’s absence following the crash for driving without a licence or insurance. The case was re-opened and C1 ultimately decided to plead guilty on the basis he accepted he had some personal responsibility for ensuring he was adequately insured and had the correct licence. The fine and points were reduced. Ms Scott-Cook contacted the immigration consultant for the claimants’ records. One record disclosed is a client care letter addressed to C2. This says: “As previously discussed we have agreed a fixed fee of £1200 for the guidance provided to you. You have stated that you wish for us to invoice this fee to your new employer OMSR Services Ltd and that they will be paying all home office fees for the application. This includes your initial consultation. This fee also includes making representations to the Home Office, informing you of any developments as and when they arise and submission of all necessary documentation. There will not be VAT charged. However, you will be responsible for all Home Office application fees and disbursements” [751]. A letter from Universal Immigration Ltd lawyers [760] also confirmed that the employer of both brothers was responsible for payment of their client’s fees. 5. Discussion and Conclusions

5.1 Applying the findings of fact to the List of Issues and the applicable law my conclusions are as follows. I take C1’s case first and the Equality Act complaints before considering his other complaints. Who was C1’s employer?5.1.1 in the List of Issues)

5.1.2 and 6.1.1)

5.1.3 ) 5.34 It is not in dispute that a conversation occurred between C1 and SK but the context is in dispute. C1 was challenged about this in cross-examination and maintained that it had happened within the context of him raising concerns about being told of a sizeable deduction from his pay, and that SK had in essence said that if C1 wanted to apply for Indefinite Leave to Remain it was common to have these struggles. To the best of my knowledge it was not specifically covered in the cross examination of SK, but SK’s account is clearly set out within his written witness statement. 5.35 On the balance of probabilities I find that the conversation did happen in the context described by the C1. I find that what SK said was not simply encouragement and support to C1, but was part and parcel of the manipulation of C1 in relation to pay. I do not consider that SK has been left unable to give his account about this; he did so in his witness statement and given SK denies in general the pay allegations made there would have been nothing much more he could say to defend the complaint. SK was also challenged in general about the manipulation of the Claimants through their shared background and faith and the related abuse of their trust, as set out above. 5.36 I find that this conduct was unwanted and was related to religion and belief. SK was manipulating C1 to accept what was happening with C1’s pay through use of their shared religion and a tenet of the Hindu faith. I find that when set within the wider context of the treatment of C1’s pay it was conduct that had the proscribed effect in being humiliating and degrading and it was reasonable for the conduct to have that effect. 5.37 This complaint is upheld against OMSR as employer and SK as agent. From 26 December 2022 until January 2023 cut the Claimant’s hours (Brought as harassment related to religion and belief against OMSR and SK – List of Issues

5.1.4 ) 5.38 I accept that C1’s hours were lower in December 2022 and January 2023. If C1 had been paid his salary then of course that would not have mattered pay wise; but I have found that is not what was happening. That treatment of C1’s pay is covered elsewhere. 5.39 C1 says in his witness statement that he considers his hours were largely being reduced to give more hours to a new member of staff Mahesh, the brother in law of Sandeep Reddy Malreddy. 5.40 The reducing of C1’s hours was unwanted conduct from his perspective. I do not find, however, that it was conduct that related to religion and belief. I cannot see the connection in that regard. That complaint is not well founded and is dismissed. On 24 January 2023, withhold information of which company had issued the COS, which company held the C1’s visa and the specifics of the application number and immigration health surcharge reference and fail to ensure the C1 understood this information and the risk of breaching the terms of his Skilled Worker Visa (Brought as direct religion and belief discrimination and harassment related to religion and belief against OMSR and/or Shivaay and/or SK - List of Issues 3.2.3,

5.2 I have found as a matter of fact that following his recruitment C1 was only working at Pepe’s Port Talbot and never worked at Noodlebox. The question that follows, however, is who was C1’s employer – was it Shivaay Fast Foods Limited (R1) or OMSR Services Ltd (R2)? The Certificate of Sponsorship was in the name of Shivaay and the written contract of employment that C1 signed latterly signed in February 2023 was in the name of Shivaay, but in practice C1 was working at OMSR. I have not seen an earlier view of the purported written contract of employment with Shivaay, and do not accept on the evidence before me there was an earlier version. R1 should have it if it exists. There are payslips in the name of Shivaay purporting to show monthly salary payments to C1, but I have found that C1 did not receive those sums from Shivaay at the start of his working relationship with SK, and later on when C1 did receive payments via Shivaay he was required to reimburse substantial amounts in cash. I have found C1 did not receive any copies of the payslips until January 2023 and thereafter largely did not receive them again until the termination of his employment.5.2.1 and

5.2.2 in the List of Issues against either OMSR or Shivaay and SK as an individual respondent) In the period August 2023 to February 2024 did the Respondents pay C1 less than the wages they should have been paid (This complaint is brought as direct religion and belief discrimination and/or direct race discrimination and/or harassment related to religion and belief – paragraphs 3.4, 4.3 and 5.4 in the List of Issues against either OMSR or Shivaay or Mava and SK as an individual respondent)

5.2.3 ) On 24 January 2023 not provide C1 with information in order to reclaim the refund on his unused Immigration Health Surcharge remaining from his previous PSW Visa (Brought as direct religion and belief discrimination, and harassment related to religion and belief against OMSR and/or Shivaay and/or SK - List of Issues 3.2.4,

5.2.4 ) 5.41 I do not find it established as a matter of fact that on 24 January 2023 SK deliberately withheld the identified information from C1; SK put C1 in touch with Mr Patel two days later (I accept having been chased again). He had also previously given C1 Mr Patel’s contact details. 5.42 I accept that SK failed to ensure that C1 understood the risk of breaching his Skilled Worker Visa; on my findings of fact SK had breached the sponsorship terms from the very beginning with recruiting C1 to work at Pepe’s Port Talbot and not Noodlebox. Indeed, by this time SK was also encouraging C1 to work additional hours elsewhere at Chaiiwala. It is easy to see SK therefore would not want to volunteer that information. 5.43 I do not find that this failure was related to religion and belief or was because of religion and belief. SK was not engaging in the active manipulation of C1 at the time of this specific allegation; instead this complaint alleges that SK simply stayed silent at this specific point in time. (SK took steps shortly thereafter but that is not the timeframe of this allegation.) In terms of the actual allegation being made, I consider it likely that SK would have behaved the same way, in not revealing information about the risks of breaching the visa terms, to any employee under a Skilled Worker Visa who was at risk of breaching their visa terms, irrespective of the employee’s religion and belief. These complaints are not well founded and are dismissed. In April 2023, tell C1 he was unable to take time off which he had booked for a trip to India (Brought as direct religion and belief discrimination and harassment related to religion and belief - List of Issues 3.2.5 and

5.2.5 against OMSR and/or Shivaay and/or SK) 5.44 Whilst this did happen I do not find it was because of religion and belief or related to religion and belief. It happened because the colleague’s need was seen as greater because his mother was seriously unwell. These complaints fail and are dismissed. In April 2023, fail to refund a promised reimbursement to C1 of the cancelled trip to India (Brought as direct religion and belief discrimination and harassment related to religion and belief) – List of Issues 3.2.6 and

5.2.6 against OMSR and/or Shivaay and/or SK) 5.45 I have found as a matter of fact that SK promised to reimburse the flight cost but then failed to do so. I accept that in doing so SK was taking advantage of C1. 5.46 In terms of the harassment complaint, I accept it was unwanted conduct. On the evidence before me I also find that this was conduct that related to religion and belief. For reasons similar to those above, I infer that a sufficient part of SK’s active manipulation of C1 in making such a promise and not honouring it came down to SK’s awareness of C1’s implicit trust in him as a respected elder as part of their shared Hindu faith. I also find that this conduct had the proscribed effects in terms of creating a humiliating environment for C1 when seen within the context of the much bigger picture of the manipulation of C1’s financial situation. This complaint of harassment related to religion and belief is upheld against OMSR as employer (but not Shivaay) and against SK as a named agent of that principal. In April or May 2023 tell C1 to go to SK’s home in Cardiff and drive the company car telling C1 it was no problem that C1 did not have a UK driving licence and thereafter regularly permit C1 to drive the car knowing he did not have a licence (Brought as direct race discrimination and harassment related to race – against OMSR and SK – List of Issues 4.1.3 and 6.2.1) 5.47 I have found that SK knew C1 did not have a valid driving licence and yet directed C1 to drive the company car. In terms of the harassment complaint, this was unwanted conduct from C1’s perspective. I find on the balance of probabilities that in doing so SK was taking advantage of C1’s trust in SK to know what the legal position was. Whilst I accept that any Skilled Worker Visa worker would be vulnerable to such a situation, I also conclude that race played an element in SK’s manipulation of C1 in this regard. In particular, I consider it likely and find that SK’s mental processing included knowing that C1 had implicit trust in him due to their shared national and ethnic origins and the cultural aspect relating to that of seeing SK as the respected elder. 5.48 I find that this conduct had the proscribed effect in creating an intimidating and humiliating environment for C1 in the sense of C1 ending up breaking the law and at risk of criminal prosecution. It is reasonable for the conduct to have that effect. This complaint of harassment related to race is upheld against OMSR as employer (but not Shivaay) and against SK as a named agent of that principal. In late May 2023, tell C1 the accountant had said C1 should first pay the full amount of wages because Shivaay was not good in terms of revenue and the respondent would then bank the money in order to pay C1 (Brought as harassment related to religion and belief against OMSR and/or Shivaay and/or SK – List of Issues

5.2.7 ) 5.49 I have found already as part of my wider conclusions about the handling of C1’s pay that this occurred and formed part of the wage exploitation and manipulation of C1. The analysis is the same and this complaint succeeds as a complaint of harassment related to religion and belief against OMSR as employer (not Shivaay) and against SK as agent for that principal. In July 2023, fail to pay C1 for annual leave he took in the period August 2022 to July 2023 and tell C1 the company does not pay holiday pay (Brought as direct religion and belief discrimination and harassment related to religion and belief against OMSR and/or Shivaay and/or SK– List of Issues 3.2.8 and

5.2.8 ) 5.50 I have found that the only holiday that C1 took was in the window of 4 June 2023 until 14 July 2023. C1 was entitled to take annual leave up to the ceiling of his contractual allowance/WTR allowance and to be paid for it. I find that C1 was not paid for his June 2023 leave days because he was told to reimburse the £1088.77 he was transferred on 17 July 2023 and told the company does not pay holiday pay. For the July 2023 holiday days on the face of it C1 was paid £809.60 but on the face of it that does not pay C1 all of his July 2023 annual leave days at his salary rate of pay. C1 therefore was not fully paid the holiday pay he was due by OMSR. 5.51 This was unwanted conduct. Again I am satisfied that it is conduct that related to religion and belief because it is another instance where SK was actively manipulating C1 to deprive C1 of C1’s entitlements, and one way in which SK was knowingly achieving that was through C1’s implicit trust in SK through their shared faith the tenets of that faith relating to SK being the respected elder. 5.52 I uphold the harassment related to religion and belief complaint against OMSR (but not Shivaay) and SK. As the harassment complaint succeeds I do not need to consider the direct discrimination complaint. In August 2023 tell C1 to undertake work the night before the business opened again; knowing it would breach the terms of C1’s visa (Brought as direct religion and belief discrimination, direct race discrimination, and harassment related to religion and belief and against OMSR and/or Shivaay and/or SVSV and/or SK – List of Issues 3.3.1, 4.2.1,

5.3 I do not find that the identification of the sponsor as Shivaay/Noodlebox in the Certificate of Sponsorship truly reflects the objective intention of the parties at the time C1 was first employed. I find that SK offered C1 work at Pepe’s Port Talbot under a Skilled Worker Visa and that was the work that C1 accepted, and it was Pepe’s Port Talbot/OMSR that C1 in turn first did the work for. I also do not find that the latterly produced purported contact of employment with Shivaay/Noodlebox that C1 signed in 2023 reflected the true position. Instead SK was trying to, on the face of it, regularise on the surface a relationship between C1 and Shivaay/Noodlebox that would on the face of it be seen to comply with the Skilled Worker Visa requirements. It was hiding beneath it the reality of the situation that C1 was and had always been working at OMSR. The true position was that OMSR/R2 was C1’s initial employer. I do not consider that this was altered later on by payments being made to C1 via Shivaay subject to the requirement to repay substantial amounts in cash. Again I consider that did not alter the reality of the situation that C1 was in truth working for and at OMSR. Instead the Shivay pay recycling or claw back arrangement was in my judgment a cover undertaken by SK as the guiding hand behind both Shivaay and OMSR to attempt to show on the surface that the Certificate of Sponsorship was being complied with, whilst continuing to avoid paying C1 the full salary payments C1 should have been paid.5.3.1 ) In August 2023 not pay C1 the work for the night before the business opened again (Brought as direct religion and belief discrimination, direct race discrimination, and harassment related to religion and belief and against OMSR and/or Shivaay and/or SVSV and/or SK – List of Issues 3.3.2, 4.2.2,

5.3.2 ) 5.53 I have found as a matter of fact that C1 was sent to work at Kaspa’s Port Talbot the night before it opened. I think it unlikely that the parties’ objective intent was for C1 to become an employee of SVSV simply for one shift. It is more likely that C1 was sent, even though it was for a different business, by SK as an employee of OMSR. As such C1’s pay entitlement would fall within his salary pay entitlement in general at OMSR for August 2023 that has already been dealt with in general above. 5.54 I would accept that SK was generally careless as to C1’s visa terms. However, I am not, however, convinced it has been shown to me that the conduct here by SK was related to race or religion and belief or because of race or religion and belief. I have no real evidence even from C1 as to the context of him working there. There is no evidence of SK actively manipulating C1 other than simply sending C1 to work there on a one off occasion. It is not covered in C1’s witness statement. I do not find it likely on balance that here that it has been adequately shown to me or that there is an adequate basis on which to infer that on this specific occasion SK was knowingly manipulating C1 to take advantage of C1’s trust in him to found the basis of the discrimination/harassment complaints. These complaints are therefore not well founded and are dismissed. In late October demand to know from C1 why his brother was causing trouble speaking about wages and deductions, and holding C1 accountable for his brother’s actions (Brought as direct religion and belief discrimination, direct race discrimination, and harassment related to religion and belief against Shivaay and/or Mava and/or SK – List of Issues 3.5.1, 4.4.1,

5.4 In September 2023 C1 moved to work at Pepe’s Caerphilly / Mava Fast Food Ltd. The question then becomes who was C1’s employer at that point. It is not an issue on which I have much by way of evidence. C1 says that SK told him he needed him and promised him the manager role. SK says it was at C1’s request. On the balance of probabilities, as set out above, I consider that the change was likely to have been led by SK who would have been looking to utilise C1’s skills and experience gained in opening and operating Pepe’s Port Talbot in Caerphilly. But I accept it was also with C1’s agreement who saw development opportunities and a shorter commute to work, not initially appreciating that SK would require him to move to Caerphilly. Within that context I have no information about any discussions as who the employer was going to be or terms and conditions. In one sense that is not surprising because it has always been the Respondents’ case that C1 main job was at Shivaay/Noodlebox but I have found that not to be the case.

5.5 The options appear to be either that C1 worked at Pepe’s Caerphilly whilst still being an employee of OMSR; or that his employment with OMSR terminated and he started fresh employment with Pepe’s Caerphilly/Mava. The case law authorities refer to the potential for novation of a contract which occurs when all three parties (outgoing employer, incoming employer and employee) all consent for the incoming employer to step into the shoes of the outgoing employer. Where there is novation the original contract still terminates.5.5.1 ) 5.55 I find as a matter of fact this exchange did happen between SK and C1 and that in context it is was likely to was linked to SK wanting to then move C2 away from Port Talbot being C2’s main base and to Caerphilly where C2 could then be more under the guidance of C1. As such I conclude it is likely that that it formed part of SK’s efforts to maintain in place the manipulation and suppression he was undertaking to C1 and C2’s wages. 5.56 It was unwanted conduct from C1’s perspective. I find the conduct was related to religion and belief. SK in my judgement was seeking to use his power over C1 to in turn control C2, and part of that known power he had over C1 related to that implicit trust that C1 had in SK through their shared faith and the tenet of SK being the trusted elder. I find that the conduct had the proscribed effect on C1; it was intimidating and it was reasonable for the conduct to have that effect. The complaint of harassment is upheld against Mava as employer and SK as named respondent. As such I have not gone on to consider the direct discrimination complaints. On 16 October 2023 tell C1: he had to live in Caerphilly; that he had to live in a particular flat; provide accommodation that was unsuitable; and charge C1 an inflated rent (Brought as harassment related to religion and belief and harassment related to race against Mava and/or Shivaay and/or SK and/or VK– List of Issues 5.6 and 6.3) 5.57 I have found as a matter of fact that all these things happened. It was unwanted conduct from C1’s perspective. I find that the conduct of SK in this regard was conduct related to religion and belief and related to race. It would suit SK and VK to have C1 living so near to Pepe’s Caerphilly and to be paying rent over the market rate for the flat that VK was already renting, ignoring the overcrowding and the poor conditions. In my judgement, I consider that part of SK’s own reasoning as to how and why he would be able to get C1 to do these things came through SK knowing he had ongoing control of C1 which in turn came in part from the trust that SK knew C1 had put in SK as the trusted elder; elements of their shared religion and their shared national origins and ethnic origins. In the wider context it is also relevant SK had been speaking to C1 about things in Caerphilly such as being a manager, being paid a fixed bond, and bonuses. The conduct had the proscribed effect; C1 was left living in degrading and offensive conditions. The complaint of harassment related to religion and harassment related to race is upheld against Mava as employer and SK as agent. 5.58 I do not, however, uphold the complaint against VK. Factually VK was involved and I can see that C1 also referred to VK as “Anna”. But unlike SK, VK was not cross examined as to his own personal motivation for the treatment of SK. In those circumstances I do not consider it would be fair to conclude or infer VK’s mental processes when he has not had that put to him with the opportunity to respond. In January 2024 tell C1 what to write in two emails: the first about resigning and the second about retracting a resignation and taking a second job In January 2024 tell C1 what to write in an email to be sent in the name of C1’s brother about having been unwell and then resigning, when in fact C1’s brother had not worked for the company for several weeks In February 2024 (post termination of employment) again instructing C1 to send an email purporting to say C1 was resigning when in fact he had already left (All brought as harassment related to religion and belief against Shivaay and/or Mava and or SK – List of Issues 5.5.3, 5.5.4 and 5.5.5) 5.59 I do not uphold these complaints. Firstly, these are not matters that were pursued with SK in cross examination and they are context specific allegations which in my judgement makes it difficult for me to fairly determine in those circumstances. 5.60 Secondly, the essential reasoning in the complaints that have been upheld in this case relate to an analysis of SK knowingly taking advantage of the implicit trust that C1 had in him. By this point in time, it must have been obvious that trust had gone. C1 alleges that SK was still able to control him because SK had control over the cancellation of his sponsorship and what period of notice there would be for that. I fully accept that is a significant power that a sponsor holds and could wield. Further I can see how it could be said that SK would want these kinds of communications formally sent to him to make everything appear correct on the surface relating to the administration of both Claimants’ sponsorship. However, even if so that would not in my judgment relate to religion and belief or race but relate simply to the vulnerability of a worker employed under a Skilled Worker Visa. If C1 has a more nuanced case to put to SK on this point as to SK’s motivations then it required cross-examination of SK specifically on that. In February 2024 fail to pay for annual leave C1 had accrued but not taken when their employment ended (Brought as direct religion and belief discrimination, direct race discrimination, and harassment related to religion and belief against Shivaay and/or Mava and/or SK- List of Issues 3.5.2, 4.4.2 and

5.5.2 ) 5.61 I also do not uphold this complaint. I accept as a matter of fact C1 was not paid his holiday pay due on termination by Mava in February 2024. But I do not find that this was because of or related to religion and belief or race as opposed to the respondents simply not complying with their obligations. My reasoning for that is as set out in respect of the complaint immediately above. Constructive Discriminatory Dismissal 5.62 I find that at the time C1 resigned his employer (Mava) was in repudiatory breach of contract that C1 was entitled to accept and treat himself as dismissed. The handling of C1’s pay alone would constitute that as would C1’s accommodation situation. The acts of discrimination/harassment I have found materially influenced the overall repudiatory breach so as to render the constructive dismissal a discriminatory/harassment dismissal and also caused the Claimant’s resignation. I do not accept, as put forward by the Respondents that C1 resigned because he had a better opportunity elsewhere with a new employer. I find that at the time C1 resigned whilst he had met Ms Scott Cook he did not yet have a job offer from her. This complaint is upheld against Mava. Holiday Pay – Working Time Regulations 5.63 Similar to the discrimination findings set out above I find that OMSR failed to pay the C1 for the annual leave he took in June and July 2023. 5.64 I also find that in February 2024 Mava failed to pay C1 for the annual leave he had accrued but had not taken from September 2023 to the date of termination. I do not accept this was paid in cash to C1. There is no documentary record of that despite the fact SK was dealing with a departing employee. The holiday pay complaints are upheld. Unauthorised deductions – Employment Rights Act 5.65 Similar to the discrimination findings set out above I find that the wages paid by OMSR to C1 in the period October 2022 to August 2023 were less than the wages that should have been paid. Further the wages paid by Mava to C1 in the period September 2023 to the date of termination were less than the wages that should have been paid. These complaints are upheld. Schedule 5 Employment Act 2022 5.66 C1 did not receive a written statement of employment particulars for OMSR or Mava, as such when these proceeding began OMSR and Mava were in breach of their duties to provide C1 with such statements. These complaints are upheld. Failure to provide itemised pay statements 5.67 OMSR and Mava both failed to provide C1 at or before the time at which any payment of wages was paid a compliant written itemised pay statement. These complaints are upheld. 6. Discussion and Conclusions – Second Claimant – Rajkamal Balne Who was the employer?

5.6 In my judgement, that is likely to be an apt description for the objective intent of the parties here which therefore was for C1’s employment at OMSR to cease and to start at Mava. There was no intent for C1 to continue working at Pepe’s Port Talbot and whilst Pepe’s Caerphilly is the same franchise it was being run as a separate business involving VK. After the change the parties were not continuing to act as though OMSR was still the employer. I therefore find that from September 2023 Mava became C1’s employer stepping into the shoes of how the relationship had been before between C1 and OMSR. In the period August 2022 to January 2024 did the Respondents have an office in the chicken shop with a sacred space containing photos of some Hindu Gods, candles and Dhoop sticks (C1 says this was disrespectful to his religion and belief because Hindus are traditionally vegetarian) (Brought as direct religion or belief discrimination and harassment related religion or belief against OMSR and SK as an individually named respondent - 3.1.1 and

5.7 Taking the harassment complaint first, I accept that this was unwanted conduct from C1’s perspective that related to his religion or belief.

5.8 The concept of having the “purpose of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant” is sometimes, by way of short hand, called the “proscribed purpose.” I will adopt that shorthand in this Judgment. I do not find that SK had the proscribed purpose in his actions. SK was not seeking to offend C1 or anyone else, but was practicing his own custom tradition. He also did not know about C1’s concerns.

5.9 The concept of having the “effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant” is sometimes, by way of shorthand, called the “proscribed effect.” Again I will adopt that shorthand in this Judgment. I do not find that in fact C1 felt that proscribed effect. C1 describes himself as feeling “a bit uncomfortable” or “did not like” the situation. As set out in the case law the threshold for harassment is a high one. I do not find that it met that threshold. This complaint of harassment related to religion or belief is not well founded and is dismissed.

5.10 Turning to the equivalent complaint of direct discrimination, C1 never communicated his concerns to SK. SK therefore did not know that C1 felt uncomfortable about the sacred space or the performance rituals because of the premises being a chicken shop, and C1’s personal perspective as a Hindu about traditions of vegetarianism. I therefore do not find that, through the practices in question, C1 was less favourably treated because of religion or belief by SK/OMSR. SK in conducting the practices that SK objects to, cannot have been motivated by something that SK did not know about (i.e. C1’s beliefs). The complaint also cannot be based on the pursuit by SK of his own beliefs. In Gan Menachem Hendon Limited v De Groen

UKEAT/059/18

it was confirmed that the purpose of the legislation is to protect a person who has a protected characteristic from less favourable treatment because of that characteristic. It is not for the protection of persons from less favourable treatment because of a protected characteristic of the alleged discriminator. It was also aptly observed there that there also could be no less favourable treatment compared to other persons in these kinds of circumstances, because a discriminator acting on the ground of his own religious belief would act the same way regardless of who was affected. The complaint of direct discrimination is therefore not well founded and is dismissed. Did the Respondents pay wages to C1 in the period October 2022 to end of February 2023 (date to be confirmed by the Claimant) less than the wages they should have been paid [the Claimant says there were unauthorised deductions for visa costs] Did the Respondents pay wages to C1 in the period October 2022 to 5 February 2024 less than the wages they should have been paid [the Claimant says there were unauthorised deductions from what was already a net figure for tax and national insurance contributions and VAT] (These complaints are brought as direct religion and belief discrimination and/or direct race discrimination and/or harassment related to religion and belief – paragraphs 3.2.1, 3.2.2, 4.1.1, 4.1.2,

5.11 I find that throughout his employment C1 was not paid the wages he was entitled to. The salary that C1 was entitled to under the Certificate of Sponsorship and his Skilled Worker Visa was £30,000 gross a year and was at a level controlled by the guideline rates, otherwise SK would not have been granted the Certificate of Sponsorship. I have found that C1 was largely ignorant of this or what it meant. C1 had sight of the certificate of Sponsorship in January 2023 and then the payslips in the name of Shivaay, but was told by SK not to worry about the name of the employer because the companies were all run by SK. What C1 understood about his pay entitlement also came through what C1 was told by SK; hence C1’s focus at the time on the hours he was working and whether he was being for those, rather than a monthly salary entitlement. I have found that SK was deliberately not paying C1 his salary entitlement because SK did not want to pay the amount SK was obliged to under the Skilled Worker Visa system and was deliberately misstating to C1 what C1’s entitlement was. I consider that stripped back from these actions of SK in the context of the vulnerability of C1; the actual objective intent of the parties was to pay C1 wages that were compliant with the Skilled Worker Visa scheme i.e. the £30,000 salary payable initially by OMSR/R2 as employer. That objective intent can best be seen within the spreadsheet that SK sent to C1 in early October 2022 when explaining C1’s pay and deductions, that had within a basic pay figure of £2500 a month. That sum would also on the face of it have been the statutory obligation to pay C1. Moreover, the Respondents have never disputed that C1 was entitled that salary; their case has always been that he was paid it.

5.12 I find that against that monthly salary payment the only deductions that R2/OMSR (and later R4/Mava) should have been lawfully making were for statutory deductions for employee tax and employee national insurance obligations. I am not able to give figures for C1’s genuine net salary monthly entitlement because I would need the parties to properly set that information out to me at remedy stage. I do not consider it is safe to work from the figures within the Shivaay payslips because on the face of the figures on those payslips for employee tax and employee national insurance deductions may not be correct. They look odd; particularly the treatment of tax because under PAYE an employer should generally deduct tax throughout the year, spreading the employee’s personal allowance evenly across the pay period, rather than waiting until the personal allowance has been used up. Those legitimate net monthly sums were not paid to C1 who instead was paid, in my judgment (starting from the October 2022 pay as that is the pleaded start date in the List of Issues): OMSR (Pepe’s Port Talbot) Monthly salary due (£2500 less lawful Payment received: deductions for employee tax and national insurance contributions): September 2022 (payable in October £1080 cash received 5 October 2022 2022) October 2022 (payable in November No pay received 2022) November 2022 (payable in December No pay received 2022) December 2022 (payable in January £170 cash received 6 January 2023 2023) January 2023 (payable in February £116 cash received 2023) February 2023 (payable in March 2023) £140 cash received March 2023 (payable in April 2023) £345 received by bank transfer April 2023 (payable in May 2023) £218 received by bank transfer May 2023 (payable in June 2023) £500 advance received. £2085.15 transferred from Shivaay but C1 reimbursed £2060 in cash to SK June 2023 (payable in July 2023) (but £1080.77 transferred from Shivaay note below regarding holiday pay but C1 reimbursed to SK in cash implications) July 2023 (payable in August 2023) (but £809.60 transferred from Shivaay note below regarding holiday pay implications) August 2023 (payable in September £2035.56 transferred from Shivaay 2023) but C1 reimbursed £975 in cash Mava (Pepe’s Caerphilly) September 2023 (payable in October £2035.56 transferred from Shivaay 2023) but C1 reimbursed £975 in cash October 2023 (payable in November £2035.36 transferred from Shivaay 2023) but C1 reimbursed £750 November 2023 (payable in December £2035.56 transferred from Shivaay 2023) but C1 reimbursed £780 in cash December 2023 (payable in January See below 2024) January 2024 (payable in February £1635 cash received on 9 February 2024) 2024 for December 2023 and January 2024 pay February 2024 (until date of termination) No pay received or holiday pay due on termination of employment

5.13 I have found as a matter of fact that SK by early October 2022 was telling C1 that there were deductions that SK had to make from C1’s pay before handing that pay over to C1 of around £974 a month to cover tax, employee national insurance, employer national insurance and VAT such that C1 would only be paid the balance. As just stated, only properly calculated employee tax and employee national insurance contributions should have been deducted, and not any improperly calculated employee tax or national insurance contributions, or employer contributions or VAT or anything else that was the difference between the Claimant’s lawful entitlement and what he actually received. I have found that when they met at the end of January 2023 SK again proffered C1 calculations and explanations that again were intended to convince C1 that all these kind of deductions were payable, including through the handwritten note that C1 took the photograph of. C1 was relying on SK. C1 trusted SK and believed what SK was telling him.

5.14 In terms of visa costs I have found that SK told C1 he was applying deductions in October 2022’s pay, November 2022’s pay and then in February, March and April 2023. I have found that visa costs also appeared to be overcharged. Further, even if these were visa cost sums owed by C1 to SK, I have also seen no evidence or argument put before me by the Respondent that these were sums were set out in a written term of the contract given to C1 in writing (in the contract or otherwise) prior to the deduction being made or where C1 has signified in writing his agreement or consent to the deduction before it was deducted. Indeed, the contemporaneous whats app messages show C1 protesting about the deductions because he was left without money to live on. As such it does not appear that C1 properly authorised the visa deductions in any event.

5.15 I have found as a matter of fact from May 2023 SK implemented a new pay system whereby Shivaay would transfer what appeared to be a salary payment to C1 but C1 would be required to fund or reimburse a specified figure back to SK in cash. That same system continued to be applied up until December 2023 after C1 started working at Mava/Pepe’sCaerphilly instead of OMSR/Pepe’s Port Talbot. I have found that using Shivaay in that way was a cover, and did not reflect C1 actually working for Shivaay.

5.16 In terms of June and July 2023, C1 was away from work in India from 4 June 2023 to until he returned to work on 14 July 2023. He was entitled to be paid his salary for 1-4 June and 14-31July 2023. He was also entitled to be paid holiday pay for the middle period subject to potentially hitting any ceiling as to his maximum holiday pay allowance. I do not find there is any evidence of C1 taking any other holiday whilst working at OMSR or once he worked for Mava.

5.17 The wages paid to C1 in the period October 2022 to February 2024 were therefore less than the wages the wages that should have been paid to C1 firstly by OMSR and then later by Mava, due to unauthorised deductions. For the period October 2022 to April 2023 (paid in May 2023) by OMSR that also included unauthorised deductions for visa costs.

5.18 Taking the harassment related to religion and belief complaint first, I find that these deductions and failure to pay C1 the wages he was due was unwanted conduct. The key question is whether that conduct by SK was related to religion and belief.

5.19 I have found that SK was not intending to pay C1 what C1 should have been paid under the Certificate of Sponsorship and that what on the surface looked like C1 having a contract of employment and monthly salary payments with Shivaay/Noodlebox did not reflect the reality of C1 working at Pepe’s Port Talbot and later Pepe’s Caerphilly. I have found that C1 working at Pepe’s Port Talbot and Pepe’s Caerphilly was being painted as C1 working a second job for less than 20 hours a week (permitted under a Skilled Worker Visa) when again that did not reflect reality. SK achieved his plans through initially manipulating C1 by telling C1 that there were various deductions that SK had to first take from C1’s pay and also because C1 was under the impression he was only entitled to be paid for hours worked (subject to deductions). Latterly when SK was told that as a sponsor he had to pay C1 salary payments through the payroll and bank transfers via Shivaay, SK then told and persuaded C1 that the “deductions” still had to be paid back to SK through C1 taking the money out of C1’s bank account and reimbursing SK.

5.20 Achieving what SK did involved a truly remarkable level of manipulation of C1 and trust by C1 in SK as to how pay arrangements worked, and what the visa costs were.

5.21 I do not have any direct explanation from SK as to why he did what I have found, because SK’s defence was premised on saying these things did not happen to start with. But the Claimants’ representative did put at the ending of the crossexamination of SK a general proposition that the Claimants were treated the way they alleged based on the culture of being Indian with their Hindu beliefs meaning that they were raised to have relationships with their elders where they saw SK as an elder and someone who would look after them and protect them. It was put that this was what facilitated SK’s breach of that trust. SK said he did not disagree with what was said about respect and use of “Anna” towards him. He said that he was polite and respectful back to the Claimants. SK did not disagree that he and the Claimants came from the same state and religion and culture and beliefs. In essence, SK was referring then, and in answer to some other cross-examination questions, to that shared culture and heritage and religion and his own personal life back story to explain why he says there was no way he could have behaved towards the Claimants in the manner they were alleging. He would say, as it was put to the Claimants’ in cross examination of them, why would he discriminate against his own people?

5.22 In doing what SK did, SK was taking advantage of C1’s vulnerability as an immigrant seeking, and then working, under a Skilled Worker Visa. C1 did not understand how the salary and deductions system should work. C1 was also vulnerable as a sponsored worker because of the imbalance of power in the relationship. In the longer term a Skilled Worker Visa was a potential route to Indefinite Leave to Remain. Also, SK held the power to cancel C1’s sponsorship leaving C1 with at best a limited period to find a new sponsor or face deportation with huge financial and reputational consequences for C1 and C1’s family. In my judgement, C1’s natural inclination was therefore to go along with whatever SK was telling him, wanted to please SK, and did not want to rock the boat. I would accept that would be likely to be the case with a sponsored employee under a Skilled Worker Visa in C1’s shoes whatever their religion and belief.

5.23 However, I also consider and find that SK and C1’s shared religion did play a part. I have spoken above about the remarkable level of manipulation by SK. In my judgement, one way in which SK was able to achieve that was through his and C1’s shared culture, heritage, national and ethnic origins that included their shared religion. In particular, the relationship between SK and C1, and SK’s ability to manipulate C1, was not just born of C1’s ignorance or vulnerability as a immigrant, or fear of jeopardising his sponsorship and future within the UK, but was also born, as set out in C1’s evidence, of C1’s blind trust in SK, acceptance of what SK told him, and belief that SK was looking after him. That in turn, in my judgement, was heavily influenced by their shared culture and community which included their shared Hindu faith. As C1 said in evidence, it was instilled in C1 as part of that culture and his Hindu faith that SK was “Anna”; a respected Elder who he was to treat with trust and respect.

5.24 I also consider it likely and find that this principle from their shared culture, including Hindu faith, did not simply lie in C1’s trust in SK, but was also likely to be at play in SK’s own behaviour, which is what matters when assessing the reason why SK did what he did. In my judgement, SK knew that C1 placed that trust in him through that shared background, including their shared faith. SK would implicitly know that, but it was also shown to SK, as SK himself acknowledged, through C1’s behaviour and manner towards him typified by C1 calling SK “Anna”. SK also knew he was manipulating C1 because SK’s conduct was intentional. In my judgement, it follows it is likely that part of SK’s mental processing in evaluating how he was going to achieve and get away with the suppression of C1’s pay involved an appreciation of the implicit trust, faith and belief C1 had in him through that shared background, and shared faith where SK was the respected elder. I consider it likely that SK was knowingly taking advantage of that. I therefore find that SK’s conduct (and in turn OMSR and Mava) was related to religion and belief.

5.25 I should add that I did not pay a great deal of regard in my decision making to the treatment of other staff beyond C1 and C2. I am not satisfied that I have an entirely accurate picture of who was working for SK at SK’s various operations at any one time, their visa status, citizenship, national origins, ethnic origins, heritage or faith, particularly without having sight of documents relating to other employees or having heard evidence from them. Certainly, I accept C1 and C2’s evidence that mainly those immediately working around them, and living with them were from that same shared community of Indian, Telegu and Hindu and their understanding from discussions that others were also facing deductions but I am not in a position to make findings beyond that. I accept it would have reinforced their sense that what was happening was how it should be. I would also add that even if there were employees on skilled worker visas from other countries who did not have a shared culture or national or ethnic heritage or faith with SK it would not ultimately alter my analysis for C1 and C2. Whatever SK’s relationship may be with other employees, and whatever other employees own vulnerabilities may or may not be, I am satisfied that this shared religion and belief for C1 and C2 played an operative part in SK’s manipulation of them as the individuals they are.

5.26 In terms of the proscribed purpose, I would accept that notwithstanding what I have just said, that SK did not intend to create an intimidating, hostile, degrading, humiliating or offensive environment for C1. I do not think that SK was seeking to hurt C1. I consider it more likely that in his own way SK thought he was still offering an opportunity to C1 as someone from his own community and an opportunity SK had previously been through in his own journey. I do, however, find that the conduct did have the effect of creating a degrading and humiliating environment for C1. As the whats apps help show, the deductions/required reimbursements left C1 consistently at times in acute stress and distress about how to financially survive, having to borrow from friends and accumulating debt. It was reasonable in the circumstances for the conduct to have that effect.

5.27 OMSR Ltd did therefore pay wages to the C1 in the period October 2022 to August 2023 less than the wages that should have been paid due to unauthorised deductions that included for tax, national insurance contributions and VAT and that conduct amounted to harassment related to religion and belief. That complaint succeeds against OMSR Ltd (but not Shivaay Fast Foods Limited who was not the employer). It also succeeds against SK as a named individual. SK would in my judgement be personally liable as agent for OMSR, and it was not argued to the contrary at the hearing.

5.28 Further Mava Fast Foods Limited paid wages to the C1 in the period September 2023 to February 2024 less than the wages that should have been paid and that conduct amounted to harassment related to religion and belief. That complaint succeeds against Mava (but not OMSR or Shivaay who were not the employer at that time). It also succeeds against SK as a named individual who is personally liable as agent.

5.29 As the complaint of harassment related to religion and belief succeeds, the conduct is not capable of also being direct discrimination and I therefore have not gone on to consider those direct discrimination complaints.

5.30 I further find that in the period October 2022 to the end of February 2023 OMSR and SK paid wages to C1 that were less than the wages that should have been paid because of unauthorised deductions for visa costs. It was unwanted conduct. Again, I find it was conduct related to religion and belief for the same essential reasoning. C1 placed implicit trust in SK to fairly incur and charge C1 the visa costs and to appropriately and lawfully handle their reimbursement. Part of that trust stemmed from their shared religion and view of SK as a trusted elder. C1 was then on the face of it overcharged, left without clarity as to what the visa costs were, and faced deductions from his pay that at times left him with no income at all. Again, I consider that SK knowingly took advantage of and manipulated that trust. That included SK knowingly taking advantage of the implications of their shared faith in terms of that trust. Again, I would accept that SK did not have the proscribed purpose. But I would find that the conduct had the proscribed effect in creating a degrading and humiliating environment for C1 and it was reasonable for the August 2022 telling C1 he needed to move to Port Talbot (Brought as a complaint of direct religion or belief discrimination, harassment related to religion or belief, and harassment related to race, against OMSR and SK – List of Issues 3.1.2,

5.31 Again, I consider first the harassment related to religion and belief and harassment related to race complaints. I have found as a matter of fact that SK did tell C1 he needed to move to Port Talbot. It was unwanted conduct from C1’s perspective because I have not accepted as a matter of fact that it was a move initiated by C1, but instead was put forward by SK.

5.32 I find that this conduct did relate to religion and belief and did relate to race. I do not doubt that in large part SK wanted C1 living in Port Talbot because it would be convenient to have C1 living so close to the Pepe’s Port Talbot premises. Further, C1 thought at the time that SK was investing in his career and C1 wanted to please SK as his new sponsor. But SK was also about to engage in manipulating C1 about C1’s employment and pay entitlements. In my judgement it is likely within that context that it was to SK’s advantage to isolate C1 in Port Talbot away from his friends unconnected to SK, and to have C1 largely surrounded by individuals in a similar situation to C1. I therefore consider it likely and find that again that this was part of SK’s knowing manipulation of C1’s terms and conditions, undertaken in part through the leverage of their shared background and implicit trust C1 has in SK as elder brother. I find therefore that it was conduct related to religion and belief and also conducted relate to race through shared national and ethnic origins. 4.33 Again I do not find that SK had the proscribed purpose, but I do find that it had the proscribed effect when set within the context of facilitating the wider manipulation of C1, including in particular his pay. This complaint of harassment relating to religion and belief and race is upheld against OMSR as employer and SK as named respondent in his capacity as agent. Because the harassment complaints have succeeded I have not gone on to consider the direct discrimination complaints. On 4 or 5 October 2022 tell C1 that during the 3 year to obtain Indefinite Leave to Remain the Claimant should financially struggle and liken it to the Hindu belief that suffering is a part of life, that suffering is a result of one’s actions, and it is not about deserving suffering but learning from it (Brought as harassment related to religion and belief against OMSR and SK – List of Issues

6.1 C2’s initial employer was OMSR/Pepe’s Port Talbot; that was who he was offered a job by, he signed a contract of employment with, and where he initially worked before going to train at Kaspa’s Barry Island, albeit the work he was given to do was never as a HR Officer.

6.2 The next question is then when C2 worked at SVSV (Kaspa’s Port Talbot) and Mava (Pepe’s Caerphilly) did he also become their employee whether in addition to other employments or as a change of employer.

6.3 The point is not an easy one because I have limited evidence, not least because the Respondents’ position in the litigation has always been that C2 only worked at Pepe’s Port Talbot as a HR Officer and my findings fundamentally disagree with that.

6.4 I consider on balance that OMSR remained C2’s employer throughout. I consider that what SK was doing was moving C2 around SK’s businesses as SK saw fit. I am not satisfied that C2’s pattern of working matches the notion of C2 formally moving between different employers at different points in time. His history is different to that of, for example, C1 who I have found did move from OMSR to Mava. C2’s whats app to SK where he asked not to be sent to Port Talbot any more is the kind of evidence in my judgement that tends to suggest both parties understood that SK could move C2 around businesses, albeit C2 was increasingly unhappy about it. I do not consider there is sufficient evidence to show that SK was not doing that under the initial OMSR contract but instead forming separate contracts with C2 for Kaspa’s Port Talbot and Pepe’s Caerphilly. There is nothing really to show offer and acceptance from those individual companies (other than the bare fact of C2 working there), or an agreed termination of one contract and the starting of another, or any kind of assignment or novation. I therefore find that C2’s employer was OMSR throughout. Did the Respondents in the period May 2023 to August 2023 [pre-employment when C2 was a job applicant] make C2 pay (via his brother) £7200 an inflated figure for a Skilled Workers Visa (Brought against OMSR and/or SVSV and/or SK)

6.5 I turn therefore to the Equality Act complaints first.

6.6 I find on the balance of probabilities that C2 was charged an inflated figure. He paid (through his family) £1200 on 23 May 2023 purportedly towards the Certificate of Sponsorship directly to SK. £4500 was then sent on £4500 to Mr Mekapotha. A final £1500 was sent to Mr Mekapotha on 5 August 2023, copied to SK. As I set out in my findings of fact, I find that SK was guiding this visa application process, albeit for whatever reason that is unknown to me, those latter payments were processed via Mr Mekapotha, an associate of SK. I do not find Mr Mekapotha was separately a friend of C1s. That was never put to C1 in cross examination. Indeed, the cross examination relating to these fees what put on the basis there had been a loan of visa fees by the respondents for C2 in the same way it had been done for C1. C1 and C2 disputed that but the whole line of argument is counter intuitive to the notion that the payment of visa fees for C2 had nothing to do with SK. The client care letter from Mr Patel the immigration advisor also refers to the employers paying the fees.

6.7 What the true figure should have been is difficult to determine because I do not have and the Claimants largely do not have the paperwork relating to the payments made in respect of C2 and that paperwork, being official documentation, should show the true face value cost. I have the documents at [865] and [866] that refer to fees in the INR currency and referring to a fee, and also additional charges for a courier service, document scanning and assistance and a priority visa so it looks likely there were some additional fees occurred beyond the cost of the visa itself. Ms Scott-Cook argued that these costs at [865] and [866] had been paid directly by C2 but that is not sufficiently clear to me from the paperwork and does not appear to have been C2’s own evidence.

6.8 It was said during the hearing by the Respondents that the cost for C2 was around £5449 including the Certificate of Sponsorship at £1299. But SK and his representative also seemed to be saying that the certificate of sponsorship was his cost to bear not C2. Quite how and why SK or SK’s representative would know what the visa costs other than the Certificate of Sponsorship would be if they had nothing to do with SK also demonstrates that really this was being handled by SK in the background. The Home Office documents supplied by the Claimants seem to show that the visa cost would have been £625 for applications made outside of the UK for three years or less and the Certificate of Sponsorship £199. I do not think I have got the figures for the NHS surcharges. There would also have been Mr Patel’s fees which according to his letter were £1200, and also on the face of it some additional fees for priority type services.

6.9 What I can, however, conclude is that even if the Respondents are correct to say the fees were around £4000 plus the certificate of sponsorship (payable by SK) then C2 would have been overcharged given £7200 is sent. I have no explanation from the Respondents as to that overcharging.

6.10 This overcharging was unwanted conduct from C2’s perspective. I find that it was conduct at the hands of SK that was related to religion and belief. As C2 said in oral evidence, because of the shared attributes with SK in being Indian, Telegu, a shared language and culture, and faith he and C1 had put their trust in SK as the boss and they would practice whatever instructions they were given to follow without rationalising it or questioning it; and that he considers that this trust was then taken for a ride.

6.11 In my judgement I consider it likely that SK was exploiting that blind trust placed in him in overcharging C2 and that SK would have known he was doing so. If so, he knew and part of his mental reasoning related to knowing he could take advantage of C2 (and C1) because of that blind trust placed in him through their shared background and culture, including their shared faith and the concept of “Anna” as trusted elder. It was more than simply exploiting the vulnerability of any job applicant seeking to come to the UK under a certificate of sponsorship. It was an additional mental element to the manipulation.

6.12 I find that this conduct had the proscribed effect; these were significant sums of money for C2 and his family and overcharging when pure trust had been placed in SK created an offensive environment. It is reasonable for the conduct to have that effect. The complaint of harassment is upheld against OMSR as putative employer and SK as a named respondent. Therefore I have not gone on to consider the direct discrimination complaints. Did the Respondents in July 2023 bring C2 to the UK to work for the business to profit from his labour (brought against OMSR and/or SVSV and/or SK)

6.13 The Respondents point out that C2 voluntarily came to the UK. That is correct albeit in the context that C2 did so at the request of his parents, rather than it being something he personally wanted.

6.14 However, SK was also seeking to employ C2 and granted C2 a Certificate of Sponsorship and it was under that Certificate of Sponsorship and ensuing visa that C2 came to the UK. In that sense SK and OMSR did bring C2 to the UK.

6.15 I would accept that SK would anticipate that C2 would be a good worker if C1 was, and also that SK saw himself as offering good opportunities to those from his community. But I also consider and find that SK was also seeking to profit from C2’s labour. SK had, in my judgement, no intention that C2 was going to work as a HR officer. SK wanted C2 as a general member of his workforce and wanted to not pay C2 the salary that the certificate of sponsorship terms required. He wanted to replicate pay arrangements he already had in place with C1, control and suppress that pay, hence why what happened with C2’s pay once C2 was in SK’s workforce until C2 resigned, as set out in my findings of fact.

6.16 Similarly to my conclusions as to how SK discriminated against C1 I find that he did the same here with C2. In bringing C2 to the UK under a Certificate of Sponsorship and seeking to profit from C2’s labour, SK was in my judgement knowingly manipulating C2. Part of that reasoning by SK related to knowing he could take advantage of C2 because of that blind trust placed in SK through their shared background and culture, including their shared faith and the concept of “Anna” as trusted elder. It was conduct that related to religion and belief in that sense. At that point in time C1 and therefore C2 were not aware that this is manipulation was occurring. It was conduct that was not simply about being able to benefit from the power a sponsor has over any sponsored skilled worker of any faith who needs sponsorship and may be seeking in the long term Indefinite Leave to Remain. The reasoning for the conduct was more than that.

6.17 It was conduct that had the proscribed effect in violating C2’s dignity and creating a degrading, humiliating or offensive environment for him. It is reasonable for the conduct to have that effect. The complaint of harassment related to religion and belief is upheld against OMSR and SK. I therefore do not go on to consider the direct discrimination complaints. Did the Respondents in July 2023 fail to pay C2 for annual leave

6.18 I do not uphold this complaint. I do not find that C2 took annual leave in July 2023. Did the Respondents from August 2023 until January 2024 put C2’s Skilled Worker Visa at risk by placing C2 to train and then work at SVSV Services when the Skilled Worker Visa was with OMSR Ltd (Brought against OMSR and/or SVSV and/or Mava and/or SK)

6.19 I have found as a matter of fact that C2 was placed to train and work at SVSV/ Kaspa’s Port Talbot as C2’s full time work and therefore that would have placed his visa at risk. Moreover C2 was not working at Kaspa’s Port Talbot (or anywhere else) in the HR Officer role. The risk it posed to C2 was unwanted conduct from his perspective.

6.20 I find that this conduct by SK was related to religion and belief. SK knew C2 was not working as a HR Officer and did not intend C2 to work as one. SK was in my judgement sending C2 to work wherever it suited SK and in doing so SK was taking advantage of C2. In my judgement, SK taking that advantage was not simply through C2 being vulnerable as a new entrant to the UK under a skilled worker visa. It was also through SK knowing that C2 would have implicit trust in him through their shared background including faith and the concept of C2 as respected “Anna” and that C2 would unquestioningly do what C2 directed. It was in my judgement likely to be part of SK’s mental process bearing in mind he would have known that what he was doing was unlawful.

6.21 The conduct had the proscribed effect in creating a degrading or humiliating environment for C2 through that manipulation. This is particularly so when seen in the overall context of what was happening to C2 in general in terms of C2 not working in the job he was recruited for, in how he was sent to do different work in different places, and what happened with his pay. The complaint of harassment related religion and belief is upheld against OMSR and against SK. As such I have not gone on to consider the direct discrimination complaints. Did the Respondents from August 2023 until January 2024 make unauthorised deductions from wages for tax, national insurance contributions and VAT

6.22 C2 was recruited on a salary of £26,500. He was entitled to that wage monthly less legitimate deductions for employee tax and national insurance contributions and regardless of hours worked. I find that C2 was not paid what he was entitled to due to SK requiring reimbursements from him allegedly for deductions for tax, national insurance and VAT. I cannot make a finding currently as to what C2’s monthly net pay should have been because I have no certainty that the Respondents’ calculations correctly comply with the PAYE obligations and this is a matter the parties will need to address at remedy stage. I find that C2 was entitled to his monthly salary throughout the period of his employment. I do not accept that, for example, when he was sent on training at Kaspa’s Barry Island that this was to be at his own request as a favour to him. They were the duties he was sent to do. I find the picture was as follows: August salary (due in September) Paid cash of £1035 September salary (due in October) Bank transfer of £2090.09 but required to reimburse £1315 October salary (due in November) Bank transfer of £2001.55 but required to reimburse £915 November salary (due in December) Bank transfer of £1912.16 but required to reimburse £915 December salary (due in January) Bank transfer of £1837.09 but required to reimburse £1350 January salary (due in February) until Unpaid termination date

6.23 This complaint in the List of Issues is only brought as a direct discrimination complaint and not a harassment complaint (List of Issues 3.2.2/3.3.2 and 4.2.2 /4.3.2). I find that this handling of C2’s pay was less favourable treatment because of race and because of religion and belief in the sense that these reasons where a material influence in SK’s mental processing.

6.24 Similar to my previous conclusions, SK knew that he was misleading and manipulating C2 in terms of pay, including through C1’s influence. I find that this conduct by SK was related to religion and belief. SK knew C2 was not, and depriving C2 of his true entitlements. In my judgement, SK taking that advantage was not simply through C2 being vulnerable as a new entrant to the UK under a skilled worker visa. It was also through SK knowing that C1 and then in turn C2 would have trust in him through their shared background including shared national origins and ethnic origins and their shared faith all linking in with the concept of C2 as respected “Anna”. It was in my judgement likely to be part of SK’s mental process bearing in mind he would have known that what he was doing was unlawful. This was less favourable treatment when compared with a Skilled Worker visa employee of a different nationality or different religion. I accept that comparator individual may be manipulated and exploited by C2 through their vulnerability as an immigrant on that kind of visa that vests so much power in the sponsor in the same way that the Claimants would be. But the Claimants through their shared race and shared religion suffered that additional tier of manipulation. Or put another way, whilst SK’s reasoning might include knowing his general ability to exploit those on Skilled Worker Visas which would be a reason not because of race or religion and belief; part of that reasoning to a more than trivial extent, also included knowing his ability to influence and exploit C1 and C2 through that shared race and shared religion and belief. I therefore uphold the complaint of direct race discrimination and direct religion and belief discrimination against OMSR as employer and SK as agent. Did the Respondents from September 2023 until January 2024 put C2 on the rota for Mava despite knowing this again breached the terms of the Claimant’s visa which only permitted him to work for the limited company his sponsored visa was with (brought against OMSR and/or Mava and/or SK)

6.25 I have found as a matter of fact that C2 was frequently sent to work at Mava /Pepe’s Caerphilly which would have been outside of his visa terms because it was not work as a HR officer and would have been outside of the secondary employment limits. Again this is a complaint that has only been brought as a direct discrimination complaint and not a harassment complaint (List of Issues 3.3.1 and 4.3.1). This conduct was to the Claimant’s detriment because he was working outside his visa terms and was also being sent to different places at different times to work differing hours.

6.26 Similar to my previous conclusions, SK knew C2 was not working as a HR Officer and did not intend C2 to work as one. SK was in my judgement sending C2 to work wherever it suited SK and in doing so SK was taking advantage of C2. In my judgement, SK taking that advantage was not simply through C2 being vulnerable as a new entrant to the UK under a skilled worker visa. It was also through SK knowing that C2 would have implicit trust in him through their shared background including faith and the concept of C2 as respected “Anna” and that C2 would unquestioningly do what C2 directed. It was in my judgement likely to be part of SK’s mental process bearing in mind he would have known that what he was doing was unlawful. This was less favourable treatment when compared with a Skilled Worker visa employee of a different nationality or different religion. Whilst that comparator individual may be manipulated and exploited by C2 through their vulnerability as an immigrant on that kind of visa that vests so much power in the sponsor in the same way that the Claimants would be, the Claimants through their shared race and shared religion suffered that additional tier of manipulation. Or put another way, whilst SK’s reasoning might include knowing his general ability to exploit those on Skilled Worker Visas which would be a reason not because of race or religion and belief; part of that reasoning to a more than trivial extent, also included knowing his ability to influence and exploit C1 and C2 through that shared race and shared religion and belief. I therefore uphold the complaint of direct race discrimination and direct religion and belief discrimination against OMSR as employer and SK as agent. Did the Respondents from November 2023 to January 2024: reduce C2’s hours, labelling C2 a troublemaker for learning there was no such thing as VAT on payroll; make unreasonable changes to the rota at the last minute including at night to Port Talbot for a shift of just 4 hours and with no payment for travel costs or travel time (Brought against OMSR and/or SVSV and/or Mava and/or SK)

6.27 This complaint is brought as direct religion and belief discrimination, direct race discrimination, harassment related to religion and belief and victimisation. In terms of the victimisation complaint, the protected act relied upon is at paragraph 6.1.1 in the List of Issues: “The C2 discovered that no VAT should be taken from employee’s wages (which had been taken from his wages every month) and raised this with the manager Madhavi of SVSV… in September 2023, saying this was happening because he was Telegu.”

6.28 In terms of the victimisation complaint, I do not find that C2 performed a protected act. I asked him to carefully tell me to the best of his recollection what he said he had told Madhavi. He told me that he and his colleagues were asking each other what pay they had received and he brought to their attention why so much was gone by way of VAT or a deduction. C2 said that Madhavi then went and asked SK and C1 then told C2 that C2 was asking questions and he should not be. There was no mention of C1 asserting that this was happening because he was Telegu. I do not consider that this communicated or would have been reasonably understood to be a complaint about breach of the Equality Act. If there was no protected act, there can be no victimisation and therefore the complaints of victimisation do not succeed.

6.29 Returning to the complaints themselves, I have found as a matter of fact these things happened and that they were part and parcel of SK allocating C2 duties at whatever location or hours SK wished and certainly were not HR Officer duties. Again I conclude one aspect of SK’s reasoning in doing this was because he thought he could because C2 would comply through the manipulation of that inbuilt relationship of respect for C2 as an elder held by C1 and C2 through, in part, their shared faith. Whilst there would have been other factors in play such as C1 and C2’s dependency on C2, it was nonetheless sufficient to make this conduct related to religion and belief. The conduct had the proscribed effect on C2; he was left in degrading and humiliating circumstances with his hours being changed, being sent to various locations, large breaks in his duties or short periods of duty, and being put on the rota to clean late into the night. It was reasonable for the conduct to have that effect. These complaints of harassment related to religion and belief are upheld against OMSR as employer and SK as agent. It is therefore not necessary to consider the direct discrimination complaints. Did the Respondents fail to pay for annual leave C2 had accrued but not taken when his employment ended?

6.30 I find this did happen, but I do not find that it was because of or related to race or religion and belief. I find this simply happened because the Respondents simply failed to pay on the breakdown on the relationship. I do not think there was active manipulation of C2 in circumstances where that trust had already gone. This complaint is not well founded and is not upheld. Constructive discriminatory dismissal

6.31 I find that C2’s employer OMSR was in repudiatory breach of contract. Again that would be satisfied simply looking at the handling of pay alone. C2 was entitled to accept that breach and resign treating himself as dismissed. I also find that the discriminatory/ harassing events found materially influenced the overall repudiatory breach so as to render the constructive dismissal discriminatory. I find that the acts of discrimination also caused C2’s resignation. As the findings of fact show; C2 had had enough. I do not find, as the Respondents allege that C2 left because he had found another job to go to or indeed that he or C1 conspired with each other or anyone else to manufacture and build a case against the Respondents. This complaint is upheld against OMSR as employer. Schedule 5 Employment Act 2002

6.32 I find that when these proceedings were begun the Respondent OMSR was in breach of the duty to give C2 a written statement of employment particulars or a change to those particulars. In particular, C2 did not have a statement of particulars with a correct job title. This complaint is upheld against OMSR as employer. Failure to provide itemised pay statements

6.33 I find that the Respondent OMSR failed to provide to C2 at or before the time at which any payment of wages is paid to C2 a written itemised pay statement. C2 did not receive regular payslips at the or before the time he was paid. The payslips also did not set out the deductions he was actually facing. This complaint is upheld against OMSR as employer. Concluding Comments

6.34 This is my decision and key reasoning on the issues put before me in the List of Issues. I would finish with an observation about the burden of proof in relation to the Equality Act complaints. This is a case in which my decision making largely came down to making findings of fact on some key contentious issues of dispute in this case and from that the drawing of secondary inferences. In particular the drawing of inferences in circumstances I have found that SK has done things which he denied, and has done things in circumstances in which I have found he knew he should not be doing them. From that and many other points of evidence in the case, including that of the Claimants, I have inferred that a more than trivial part in SK’s reasoning was likely to be his knowledge of his ability to manipulate C1 and C2 through the implicit high level of trust they had in SK through their shared race and shared religion and belief that he was doing the right thing. I do not consider that the analysis fundamentally comes down to the burden of proof. However, if I look at the same allegations through the prism of the burden of proof, my ultimate conclusions would be the same. I would find that the Claimants had shown sufficient facts from which I could conclude the conduct in question was related to or because of race and/or religion and belief. That is shown through the findings of fact as to the many ways in which C1 and C2 were being manipulated and exploited including in particular the handling of their pay where the degree of manipulation and control was really quite remarkable and which calls for an explanation. I would not find that the Respondents have then proved through cogent evidence that the conduct in question was in no way because of or related to race or religion and belief. Indeed, in large part it is difficult for them to do so when the very conduct in question is not accepted by them, and there is therefore largely no legitimate explanation offered for the conduct other than the denial that it happened or happened as alleged by the Claimants.

6.35 I also apologise to the parties again for the delay in delivering this Judgment which has been due to the size of this case, and the fundamental importance of the issues it raises.

6.36 I will separately send some case management orders so that the parties can prepare for a remedy hearing. They are however encouraged to continue to use the services of Acas to see if it is possible to resolve remedy issues without a need for a hearing. Approved by: