Mr M D Thomas v Gileston Manor Properties Ltd: 1604232/2024
EMPLOYMENT TRIBUNALS
Case No 1604232/2024
Between
Mr M D ThomasClaimantGileston Manor Properties LtdRespondent
Before
Employment Judge BraceDate 7 January 2026
JUDGMENT
The complaint that the Claimant was unfairly dismissed is struck out.
REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a Claimant to have not less than two years service to make an unfair dismissal complaint.[3]The Claimant was employed by the Respondent for less than two years.[4]Therefore the Claimant is not entitled to bring such a complaint.[5]The Claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The Claimant’s other complaints are not affected by this judgment. Approved by[1]The Respondent did not present a response to this claim and on 28 January 2024, was informed that under rule 22 Employment Tribunal Procedure Rules 2024 a judgment may be issued and that whilst they were entitled to receive notice of any hearing, they may only participate in any hearing to the extent permitted by the Employment Judge who hears the case.[2]The final hearing in this case was heard in person on 8 April 2025.[3]The Respondent attended but requested only to make submissions. I do not permit that currently.[4]In the ET1 claim, the Claimant indicated that he was bringing claims of unfair dismissal together with claims for notice pay, holiday pay and arrears of pay (ET1 Box 8.1) in the sum of £1,767.00 (ET1 Box 9.2) as follows:a.£159.25 in respect of 12.25 hours worked unpaid;b.£858.00 for ‘statutory holiday’; andc.£750.00 for pain and suffering for being ignored and lied to and receiving no documentation from the Company.[5]The content of ET1 Box 6.5 and 8.2 indicated that the Claimant was also bringing a claim for failure to provide a written statement of main terms and conditions, failure to provide pay statements (i.e. payslips) and a failure to provide him with a P45 if his employment had ended. 2 of 8[6]I refer to these as the ‘Current Claims’. The Claimant[7]The Claimant has a brain injury which he tells me he has lived with since he was 3 years’ old. I did not require evidence from the Claimant at this stage regarding whether he falls within the definition of a disabled person under s.6 Equality Act 2010 as this is unnecessary at this stage, but had discussion with him regarding what reasonable adjustments might be required for him to participate in this hearing. He clarified that routinely interrupting people, but not necessarily being aware that he is doing it and getting emotional are matters that he now lives with. Both behaviours had been exhibited during the hearing and I indicated that as an adjustment I would note that and not take issue with any interruption and confirmed to him that I would record that in this record of hearing. He and I agreed that he might require additional processing time and as the hearing progressed. Clarification of
Claims
[8]In clarifying the claims within the ET1, the Claimant maintained that his employment had not been terminated by either party and that his employment was continuing, effectively on unpaid suspension.[9]We discussed that claims for accrued untaken holiday pay could not be brought until after the employment ended. The Claimant confirmed that he was bringing a complaint under regulation 30 Working Time Regulations 1998 (“WTR 1998”) that the Respondent had refused to permit the Claimant to exercise the right to paid annual leave.[10]After discussion regarding his claim for notice pay, the Claimant also confirmed that he wished to withdraw his claim for breach of contract/notice pay. I confirmed that I would be issuing judgment dismissing that complaint on that withdrawal. The Claimant confirmed that he understood this.[11]The Claimant was also informed that the Tribunal has no jurisdiction to consider a complaint regarding P45s and was not a legal claim that he could bring. He understood that. Hearing[12]Evidence was then taken from the Claimant on his Current Claims with me accepting his written statement as his evidence but asking some additional questions.[13]In those course of that live evidence, on what I have referred to as the Current Claims, the final hearing was adjourned part heard to a date to be determined as an application was made by the Claimant made during that evidence to amend his ET1 to bring: 3 of 8a. an unlawful deduction from wages claim in respect of continuing deductions from July 2024, the Claimant maintaining that his employment was continuing, andb. discrimination complaints related to comments he asserts was made by Archie Hoyi of the Respondent.[14]The Claimant was aware that in doing so, the Respondent would be permitted to defend any claims that I would allow by way of an amendment.[15]The Claimant did make a written application to amend following the adjournment of the final hearing on 22 April 2025 and that application was considered by me at private case management on 19 August 2025.[16]The Claimant has been permitted to rely on additional claims (“Amended Claims”) which will be considered at the adjourned final hearing and after the Respondent has been given the opportunity to respond to such Amended Claims.[17]I confirmed to the parties at that case management that I would therefore now provide a Reserved Judgment on the Current Claims that had been considered in April pending any determination on the Amended Claims rather than reserve all my decisions to that later hearing.[18]These are therefore the written reasons for the Current Claims only.
The applicable law
[19]The relevant provisions are as follows Unauthorised deductions – Employment Rights Act 1996 (“ERA 1996”) Section 13 ERA 1996 Right not to suffer unauthorised deductions. (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 Section 14 ERA 1996 Excepted deductions. (1) Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of— (a) an overpayment of wages, or 4 of 8 (b) an overpayment in respect of expenses incurred by the worker in carrying out his employment, made (for any reason) by the employer to the worker. 15. Section 23(2) ERA 1996 provides that an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with the date of payment of the wages from which the deduction was made. Section 23(3)(a) ERA 1996 provides that where a complaint is brought in respect of a series of deductions or payments, references to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. Working Time Regulations 1998 (“WTR 1998”) 16. Pursuant to Regulation 13 WTR 1998, a worker is entitled to four weeks' annual leave in each leave year beginning on such date during the calendar year as may be provided for in a relevant agreement or, where there are no provisions of a relevant agreement which apply where the worker’s employment began after 1st October 1998, on the date on which that employment begins and each subsequent anniversary of that date. Pursuant to Regulation 13A WTR 1998, a worker is entitled to a period of additional leave in any leave year beginning on or after 1st April 2009, of 1.6 weeks, with the aggregate entitlement subject to a maximum of 28 days. A worker is only entitled to payment in lieu of annual leave where a worker’s employment is terminated (Regulation 14 WTR 1998). 17. Regulation 30 WTR 1998 provides that a worker may present a complaint to an employment Tribunal that his employer has refused to permit him to exercise any right he has under regulation 13 and/or regulation 13A WTR 1998. 18. Such a complaint should be brought before the end of three months beginning with the date on which it is alleged that the exercise of the right should have been permitted or within such further period that the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months (Regulation 30(2) WTR 1998. 19. If the complaint is well-founded, the Tribunal shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the worker which shall be such as the Tribunal considers just and equitable in all the circumstances having regard to:a. The employer’s default in refusing to permit the worker to exercise his right, and 5 of 8b. Any loss sustained by the worker which is attributable to the matters complained of1. Failure to give itemised pay statements / Failure to give a statement of employment particulars[20]Section 8 ERA 1996 provides that 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 and section 11 ERA 1996 provide that where an employer does not, or the statement given does not comply with what is required, the worker may make a reference to an employment tribunal to determine what particulars ought to have been included or referred to.[21]Section 12(3) ERA 1996 provides that if an employment tribunal finds that the employer has failed to give a worker any pay statement a declaration shall be made to that effect and if the tribunal finds that unnotified deductions have been made during the period of thirteen weeks immediately preceding the filing of the claim making the application for a reference, the tribunal may order the employer to pay the worker a sum not exceeding the aggregate of the unnotified deductions so made.[22]Section 38 Employment Act 2002 provides that in any proceedings before an employment tribunal relating to a claim by a worker under any of the jurisdictions listed in Sch 5 to that Act, if the Tribunal finds in his / her favour and when proceedings began the employer was in breach of its duty to the worker under s.11 ERA 1996 to give the worker a written statement of initial employment particulars or of particulars of change, the Tribunal must make an award of the minimum amount of two weeks’ pay and may, if it considers it just and equitable to make and award of an amount equal to four weeks’ pay. Facts20. The Claimant was employed by the Respondent, a company that operates a hotel, from 22 December 2023 and was undertaking Bar Manager responsibilities at Gileston Manor.21. He agreed with the managers that he would be paid £13.00 per hour. The Claimant did not have normal hours. Hours varied according to the work and if the Respondent was not hosting a wedding for a particular week, he assumed that he would work from 9am to 4.00pm. 22. The Claimant gave evidence, which I accepted, that he asked for a contract of employment from the Respondent and was reassured that it was ‘in hand’, but a contract ‘never materialised’, as he put it. This evidence was supported by documentary evidence in the form of screenshots of Whatsapp exchanges with the Claimant in which he requested such a document. 1 Regulation 30(3) and (4) WTR 1998 6 of 8
Facts
[23]The Claimant also had to ask for salary on a number of occasions as payment was late. He only assumed tax and national insurance (“NI”) had been deducted as he did not payslips from the Respondent.[24]The Claimant gave evidence that he asked Lorraine and Archie Hoyi if he could take holidays and he was told ‘no’. He cannot recall when exactly he had asked and was unable to think of the exact dates. When I asked him if he recalled what he had been told, he gave evidence that he had asked if he was able to book holidays and he was told that he could not as he was on a zero hour contract and he did not get them.[25]Despite the Claimant being unable to recall the exact dates I accepted that evidence and found that the Claimant had asked for annual leave and was informed that he was not entitled to take annual leave. The Claimant explained that not permitting him to take leave resulted in some anxiety and emotional turmoil. Again, I accepted that evidence.[26]The Claimant also gave evidence that his hours started to decrease and by the beginning of July 2024, he was in communication with Archie Hoyi regarding role change and his concern that his hours were decreasing, culminating in an exchange between the two on 11 July 2024.[27]The Claimant gave evidence that he had not been paid for 12.25 hours of work at the rate of £13.00 amounting to £159.25 in the period 1-12 July 2024. Again, I accepted that evidence. Conclusions Unauthorised deductions 1-12 July 2024
Conclusions
[28]I was satisfied that the complaint of unauthorised deductions from wages in respect of pay from the period 1-12 July 2024 was well-founded and that the Respondent should pay the Claimant £159.25, which is the gross sum deducted. Statement of terms and conditions/Itemised pay statements[29]I had further found that the Claimant had neither been provided with a statement of terms and conditions or itemised pay statements i.e. payslips, since the commencement of his employment and that such that the Claimant was entitled to declarations that:a. the Respondent had failed to give the Claimant written itemised pay statements as required by section 8 Employment Rights Act 1996 in the period of employment to July 2024; andb. that when the proceedings were begun the Respondent had also been in breach of its duty to provide the claimant with a written statement of employment particulars. 7 of 8[30]What financial award the Claimant is entitled to in respect of such failures will be determined at the adjourned final hearing. Working Time Regulations 1998 – Holiday pay claim[31]I was further satisfied that, at some point between April – 12 July 2024, the Respondent refused to permit the Claimant to exercise the right to paid annual leave under the Working Time Regulations 1998 on the basis that I had found that the Claimant had requested leave on the basis of my findings at §24 above. That claim too is well-founded.[32]Whilst I accepted that the Claimant had suffered some injury to his feelings, I was not persuaded that there was any evidence of personal injury. Furthermore, I am not satisfied that it would be appropriate to order compensation for injury to feelings for breach of Regulation 30 WTR 1998 as in Santos Gomes v Higher Level Care Ltd 2018 ICR 1571 CA, the Court of Appeal, when considering whether compensation under Regulation 30(4) WTR 1998 extended to injury to feelings, did not consider that the Directive did not require the WTR 1998 to be interpreted to permit an award for injury to feelings. Approved by:
Conclusions
[1]The Claimant has already been given a declaration that the Respondent failed to give the Claimant written itemised pay statements as required by section 8 Employment Rights Act 1996 in the period of employment to July 2024 but the Respondent made no unnotified deductions from the pay of the Claimant in the 13 weeks prior to presentation of the claim form and therefore the Respondent is not ordered to pay the Claimant any monies in respect of deductions. Failure to provide a written statement of employment particulars[2]The Claimant has already been given a declaration that when the proceedings were begun the Respondent was in breach of its duty to provide the Claimant with a written statement of employment particulars.[3]There are no exceptional circumstances that make an award of an amount equal to two weeks’ gross pay unjust or inequitable. It is just and equitable to make an award of an amount equal to four weeks’ gross pay. In accordance with section 38 Employment Act 2002 the Respondent shall therefore pay the Claimant £1,363.80. 1 of 2 Case Number: 1604232 / 2024 Just and equitable time limit extended[4]The complaints of harassment, direct discrimination and/or discrimination arising from disability were not presented within the applicable time limit, but it is just and equitable to extend the time limit. The complaints therefore proceed Harassment[5]The complaint of harassment related to disability is not well-founded and is dismissed. Direct discrimination[6]The complaint of direct disability discrimination is not well-founded and is dismissed. Unfavourable treatment because of something arising in consequence of disability[7]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed Wages[8]The complaint of unauthorised deductions from wages from 12 July 2024 is not well-founded and is dismissed.