Mr S Geczy v Chasing Change Ltd T/a Remedy Coffee Shop: 1806828/2024

EMPLOYMENT TRIBUNALS

Case No 1806828/2024

Between

Ms Summers, lay representativeClaimant

Mr Williams, consultantRespondent

Before

Employment Judge JM Wade

Ms Summers (instructed by lay representative) for claimant

Date 4 March 2025

JUDGMENT

[1]BY CONSENT: the claim is amended to correctly identify the respondent as it appears above.

[2]The claimant’s unlawful deductions from wages complaint succeeds and the respondent shall pay to him the following sums: 2.1. £767.24 (unpaid wages) 2.2. £ 80.73 (unpaid pension/Section 24(2) consequential NEST pension loss at 3%) 2.3. £2592.66 (21 days’ gross unpaid holiday on the termination of employment); Total £3440.63

[3]The Tribunal makes a further award of two weeks’ gross pay £1218.14 in respect of a failure to provide a Section 1 Statement of Employment Particulars.

[4]The total sum payable by the respondent to the claimant is £4658.77 Note: there was no written application for a preparation time order to which the respondent could sensibly respond today. If such an application is to be made it shall be copied to the respondent and set out the grounds (Rule 74(2)) and otherwise take account of rules 75 and 77 of the Tribunal rules of procedure. “

REASONS

[1]The claimant was employed by the respondent coffee shop until 5 May 2024. His employment ended and he brought complaints as a litigant in person. He was ably represented by his sister. He set out a very clear factual summary of the dispute and subsequently particulars of claim which stood as his evidence. The claim form and particulars alleged that the claimant was owed final wages, pension contributions throughout his employment and holiday pay on the termination of employment. He also alleged: “no contract was given to me during my time of employment even though I asked several times for this”.

[2]The respondent was given permission for the late presentation of a response shortly before this hearing. The respondent presented written submissions (attached to these reasons) which analysed all the evidence as to wage payments and I adopt as findings of fact the table of payslips and bank receipts and the correct calculation of a week’s pay. The claimant had also provided similar information in Excel form but it was expressed in pence and I found it more expedient and proportionate to work from the respondent’s tables.

[3]In light of the submissions accepting there had been an unlawful deduction from final wages, I heard sworn evidence from Mr Wilkinson, the respondent’s director, and then from the claimant, on the key further matters of fact to be determined by me, namely: 3.1. Was the claimant provided with a written statement of employment particulars/employment contract? 3.2. How were payments of wages typically made (the time limit issue)? 3.3. What was the respondent’s holiday year? 3.4. Was a commitment made to roll over holidays (the gist of Mr Wilkinson’s position, despite the submissions, was that his accountant had told him that the only holidays that had to be paid were those in the current year)? 3.5. What holidays were actually taken, if any?

Findings

[4]The respondent employs five or so staff at a coffee shop. Mr Wilkinson now has contracts for all staff he tells me, but the claimant was engaged in April 2023, a few months after the premises commenced trading in December 2022. The terms of his employment were discussed and agreed verbally because he and other staff were considered friends by Mr Wilkinson. The claimant was not provided with a statement of written terms and conditions and he and Mr Wilkinson exchanged whatsapp messages about pay from time to time. Initially the pay was £12.50 an hour with an expectation of 38 to 45 hours per week plus tips. From August 2023 it was agreed the claimant was to be paid a salary of £27,000, or £2250 per month, plus tips, with an expectation of 45 hours per week.

[5]Payment of wages were typically on or around the date of the relevant payslip for the previous month.

[6]On notable occasions there were cash flow problems and payments were made by instalments and late, notably in July 2023, October/November 2023, January 2024 and 30 April 2024 (paid on 1 May) (and for final wages and holiday pay – not at all). The claimant was paid less than the amounts due to him by £36 for his August 2023 payslip (apparently because the sum was misread), £244 for December 2023 (instalment payments) and a small amount for holiday and sick pay on 20 May 2024 - £433.50 - but no pay for the final four days he worked or holiday pay (and a payslip issued in July 2024 for holiday pay was also not paid).

[7]The claimant had been absent for 15 days in April 2024 due to a disc issue in his back - he tried to return on Monday 15 April – but was unable to sustain that and returned properly on 22 April. He had also worked 2, 3, 4, and 5 May – but was not paid for these days. He did not pursue a claim for damages for unpaid notice pay (on his case having given notice but not been needed to work it), but simply his unpaid wages for his last four days’ work, holiday pay and pension related payments (he properly did not pursue SSP payment with the Tribunal – that being outside our jurisdiction).

[8]The respondent’s holiday and financial year is 1 April to 31 March. It uses accountants to provide payroll services and ensure NEST pension payments are made. It changed accountants during the claimant’s employment.

[9]If the claimant wished to take holiday he was asked to write it in a black book, but there were times when that book was not available because Mr Wilkinson had taken it away; at times the claimant was told he could not take holiday. He did not understand his holiday entitlement at the time, but knew he was working hard without taking holiday and considered all would be well.

[10]On 7 March the claimant asked how many holidays colleagues had to take this year (up to April) – that is before the end of the holiday year. Between 7 and 15 March 2023 there were exchanges between colleagues and Mr Wilkinson. The claimant also asked the question, if he did not take holidays, “do we get them as pay”, in response to which Mr Wilkinson told him – “they won’t get paid out as we can’t afford to do that for all but don’t see why they can’t roll over” via a whatsapp exchange. And further: “we’re gunna have to roll holiday into next year if that’s ok.......working out how to record this from one tax year to the next but it’ll be paid out as and when we can...”. There was no reservation of a limited number of holiday days which could roll over – the grounds of resistance suggested eight days only - without any explanation of where his case from or how the claimant was to know it.

[11]In consideration of the clear commitment, reasonably to be understood as all unused holiday, the claimant did not seek to take his remaining holiday for 23/24 and continued working to the rota provided. He worked five days a week with two days off which were not always together as is typical in hospitality.

[12]Throughout his employment the claimant only had the following paid holiday days: three days late August/early September; 11-13 October 2023; 27 December 2023 (25 and 26 were his ordinary two days’ off) and he worked four days that week.

[13]After his employment ended, it became apparent from the claimant’s NEST pension account that the sums deducted from his pay had not been received into that account. By this hearing there was evidence that the position had been corrected. Conclusions Wages

Conclusions

[14]The unlawful deductions from wages provisions are to be found in Part II of the Employment Rights Act 1996 Sections 13 to 27 and as to the law generally I have been greatly helped by the submissions below.

[15]I consider the respondent has made a series of deductions from the claimant’s wages, albeit they were not short every month – the underlying reason for the shortages appears to be cashflow in a new business and a disregard for detail and organisation. The changing of accountants may have also played its part, but the overarching theme is inattention to the importance of paying the correct sum on the correct date where resources (both time and money) are scarce.

[16]I consider that the thematic similarity of all deductions is such that they are properly to be considered a series. They all fall properly to be adjudicated: there is no time limit issue because the last in the series was presented within the appropriate limitation date.

[17]While the respondent seeks credit for an overpayment of £184.40 on its calculations across all payslips, it also puts forward that it should not have deducted £1090.38 from April’s wages (without, presumably, paying statutory sick pay for those periods). It was not the claimant’s case that there was a deduction in this respect (for his days absent because of his back) and I therefore consider it expedient to adopt the respondent’s calculation of the total of the three deductions: August 2023, December 2023 and May 2024 - , applying an average of a week’s pay including tips for the final four days’ work. That sum is £767.24, in respect of which the respondent has not established any overpayment which properly falls to be set off.

[18]Holiday pay.

[19]The claimant’s accrued holiday entitlement was 30 days (including bank holidays) for the period to his last day of employment on 5 May 2024. This accrued across two holiday years – 1 April 2023 to 31 March 2024; 1 April 2024 to 5 May 2024 (27 days 2023/2024, 3 days 2024/2025). He used 7 days. While the WTR does not permit carry over (other than in particular circumstances and only in relation to Reg 13 holiday), I have concluded that the parties agreed – offer, acceptance and consideration – that the whole of 2023/2024 unused holiday could be carried over - 20 days for the claimant – and that if not taken they would be paid out. Regulation 14 also provides that his 24/25 three days’ should also be paid on a compensatory basis on the termination of his employment.

[20]In those circumstances, I ask myself the question, was the sum properly payable to the claimant in his final wages less than was properly payable and the answer is yes, as to wages (see above), and yes as to holiday pay. The sum as to holiday pay consists of applying Regulation 14 and/or on the basis that a contractual promise had been made to do so. The respondent paid a sum of £238.85, which I find was a payment in respect of two days’ holiday pay, out of the 23 days’ due. I therefore award the claimant 21 days’ pay at the rate calculated in accordance with the respondent’s submissions (123.46 per day gross).

[21]As to the claimant’s case on NEST pension contributions, I agree with the submission that if there are sums deducted on payslips from wages but not paid over to the claimant’s account – this is a matter for the Pensions Ombudsman – there is no unlawful deductions because the deductions are mandatory but the employer must make good - much like it must pay its deductions over to HMRC – and there is evidence that this has now been addressed.

[22]However, it follows that had the correct payments been paid at the correct time the claimant would have benefitted from the mandatory employer pension contribution on the deducted sums into his NEST pension account. In my judgment such loss is the type of loss envisaged by Section 24(2) of the Employment Rights Act 1996, “to compensate the worker for any financial loss sustained by him which is attributable to the matter complained of”. The matter complained of is the underpayment of wages and holiday pay - earnings - on a series of occasions.

[23]On each occasion an employer’s contribution would have been made to the NEST account (subject to upper and lower bands) of the correct percentage of wages/holiday pay. I must award the gross sum in wages and holiday pay to the claimant (rather than the net sum) but it appears to me that an approximate compensatory sum for the Section 24(2) pension contribution related loss should be awarded and I asses that at £80.73.

[24]As to the failure to provide a Section 1 Statement, I recognise this is a very small business with the strains that brings. I have a discretion to award two or four weeks’ pay. Matters which affect the exercise of that discretion include that a theme causing the unlawful deductions – in attention - is also present in failing to provide a Section 1 statement. A section 1 statement is at the heart of understanding the respective rights and obligations between the parties. I do bear in mind that this was a very friendly business and that relations appeared good – until they were soured by underpayment. I also bear in mind that the claimant had virtually no pay in respect of his back pay absence albeit that was not a matter within my jurisdiction – and that too appeared to be inattention. In all the circumstances I consider two weeks’ pay the just amount. Employment Judge JM Wade 4 March 2025 Note: Decisions and written reasons are published on the Tribunal’s website shortly after they are made available to the parties. A practice direction applies to recordings in the Tribunal. 6.IN THE Leeds EMPLOYMENT TRIBUNAL CASE NUMBER: 1806828/2024 BETWEEN: Sebastian Geczy Claimant v Remedy Coffe Shop Respondent RESPONDENT’S SUBMISSION TO TRIBUNAL

Introduction

[1]The Claimant was employed by the Respondent, a café, as a Front of House Manager from 17th April 2023 until 5th May 2024.

[2]Early conciliation started on 4th June 2024 and ended on 16th July 2024. The ACAS Early Conciliation Certificate is at page 4 of the final hearing bundle. It is submitted that anything prior to 5th March 2024 will be out of time.

[3]The claim form was presented on 19th August 2024. The ET1 and original particulars of claim are at pages 7 to 18. The ET3 and particulars of response are at pages 19 to 30, and updated particulars of claim are at pages 31 to 36. The Complaints The claimant is making the following complaints: Unlawful deductions Holiday pay Pension contributions

[8]Failure to provide written statement of terms and conditions of employment

The Issues

[9]The issues the Tribunal will decide are set out below. Unauthorised deductions

[10]Was on any occasion the amount paid to the Claimant less than the amount which was properly payable on that occasion? Yes. The Claimant was not paid for the last three days’ work he did for the Respondent. How much should the Claimant have been paid on each occasion? The Claimant was entitled to his salary and tips each month, less deductions for Tax, National Insurance and Employee pension contributions. Analysis of the Claimant’s payslips is set out below: Date Taxable PAYE NIC Holiday EE Pension ER Pension Sick Tips Net Pay Page 5/5/23 £ 726.00 £ - £ - £ - £ - £ - £ - £ - £ 726.00 90 5/6/23 £ 1,560.00

£ 37.80

£ 61.44 £ - £ - £ - £ - £ 1,460.76 65 2/7/23 £ 2,360.40

£ 262.40

£ 157.49 £ - £ - £ - £ - £ 220.40 £ 1,940.51 66 5/8/23 £ 2,262.23

£ 225.40

£ 145.71 £ - £ 87.11

£ 51.90

£ 255.98

£ 1,804.01 67 5/9/23 £ 2,544.00

£ 279.00

£ 179.52 £ - £ 101.20 £ - £ - £ 294.00 £ 1,984.28 68 30/9/23 £ 2,250.00

£ 261.00

£ 156.70

£ 103.84 £ - £ - £ - £ - £ 1,832.20 71 27/10/23 £ 2,250.00

£ 198.80

£ 119.32

£ 0.01

£ 60.89

£ 45.67

£ 207.68 £ - £ 1,663.32 71 24/11/23 £ 2,250.00

£ 240.40

£ 144.24 £ - £ 69.20 £ 51.90 £ - £ - £ 1,796.16 69 29/12/23 £ 2,250.00

£ 240.40

£ 144.24 £ - £ 69.20 £ 51.90 £ - £ - £ 1,796.16 72 26/1/24 £ 2,250.00

£ 278.60

£ 120.20 £ - £ 69.20 £ 51.90 £ - £ 192.00 £ 1,974.00 74 23/2/24 £ 2,250.00

£ 304.20

£ 120.20 £ - £ 69.20 £ 51.90 £ - £ 318.40 £ 2,074.80 78 3/4/24 £ 2,250.00

£ 279.20

£ 120.20 £ - £ 69.20 £ 51.90 £ - £ 195.20 £ 1,976.60 79 30/4/24 £ 2,250.00

£ 31.20

£ 8.93 £ - £ 25.58 £ 19.19 £ - £ 45.20 £ 1,139.11 80 20/5/24 £ - -£ 31.20 £ - £ 238.85 £ - £ - £ 163.45 £ - £ 433.50 81 £ Total £ 27,452.63

£ 2,607.20

£ 1,478.19

£ 342.70

£ 620.78

£ 376.26 371.13 £ 1,521.18 £ 22,601.41 The Claimant’s bank statements (pages 83 to 86) show that he received the following payments: Date Receipt Page 03/05/2023 £ 726.00 83 30/05/2023 £ 1,460.76 83 03/07/2023 £ 1,000.00 83 03/07/2023 £ 600.00 83 07/07/2023 £ 340.51 83 31/07/2023 £ 500.00 83 01/08/2023 £ 1,304.01 83 31/08/2023 £ 1,948.28 83 02/10/2023 £ 1,832.20 83 30/10/2023 £ 1,663.32 83 01/11/2023 £ 312.00 83 27/11/2023 £ 1,796.16 83 05/12/2023 £ 152.00 83 04/01/2024 £ 500.00 86 04/01/2024 £ 796.16 83 04/01/2024 £ 256.00 83 29/01/2024 £ 1,974.00 83 01/03/2024 £ 2,074.80 83 02/04/2024 £ 1,500.00 85 03/04/2024 £ 476.90 85 01/05/2024 £ 1,139.11 85 20/05/2024 £ 433.50 85 Total £ 22,785.71 The payslip analysis includes payments of £235.85 made following the end of the Claimant’s employment, on 20th May 2024 (page 81). The is a further payslip in the bundle dated 19th July 2024 for £830.77 (page 82) for holiday pay. However, this was created in anticipation of settlement between the parties, and the Respondent confirms that this particular payment was not made. There was also a payment for £163.45 paid in respect of sick pay made on 20th May 2024 (page 81). The Claimant has set out at page 57 his submission in respect of entitlement to Statutory Sick Pay (SSP). His pay statements show at pages 79 and 80 that he was, in fact, paid his normal pay in April 2024, notwithstanding his entitlement only being to SSP. SSP at the time in question was £116.75 per week. His first three days of sickness absence are treated as “waiting days”. It is accepted that the Claimant notified the Respondent of his sickness absence within the required period, and that he provided a Statement of Fitness for Work subsequent to the first week, when he self-certified, as required. The Claimant’s absence set out at page 57 is summarised below Date Note Waiting 06/04/2024 Day Waiting 07/04/2024 Day Waiting 08/04/2024 Day 09/04/2024

10/04/2024

11/04/2024

12/04/2024

13/04/2024

14/04/2024

15/04/2024 Worked 16/04/2024

17/04/2024

18/04/2024

19/04/2024

20/04/2024

21/04/2024

22/04/2024 Worked The applicable rate of Statutory Sick Pay in effect at the time in question was £116.75 per week.

[11]How much was the Claimant actually paid? The tables comparing payslips with bank receipts show a total payable of £22,601.41 and a total received of £22,785.71, a balance in the Claimant’s favour of £184.40.

[12]How much is the Claimant owed? The amounts due to the Claimant are set out in the remedy section of this submission. Holiday Pay (Working Time Regulations 1998)

[13]Did the Respondent fail to pay the Claimant for annual leave that the Claimant had accrued but not taken when their employment ended?a. How much leave that the Claimant accrued? It is accepted that the Claimant was entitled to 4 weeks’ paid leave under Regulation 13 of the Working Time Regulations 1998 and an additional 1.6 weeks under Regulation 13A. This equates to 28 days per annum for the Claimant. The Claimant worked for a year plus 2.4 weeks. This equates to fractionally over half a month (0.55); for that period, he would have accumulated 1.3 days’ leave over and above a full year’s entitlement. That would make a maximum of 29.3 days during his employment.

b. How much leave had the Claimant taken? The Claimant says that he took three days’ paid holiday on 1st to 3rd September 2023, which is corroborated at paragraph 26 on page 34. At page 95 the Claimant talks about booking from 30th August to 4th September 2023 as leave to attend a wedding, to which the Respondent agrees. He also says that he took three days three days’ paid holiday on 11th, 12th and 13th October 2024. This is corroborated by the Claimant in paragraph 27 at page 34, as well as a WhatsApp message on page 96. The Claimant also appears to have requested holiday for early February 2024 in a WhatsApp message (page 97), although (page 98) there is some uncertainty as to what was taken, and this rolls into another message (pages 99 to 100). The Claimant also appears to have had 25th, 26th, 27th of December 2023 and 1st January 2024 off (page 93).

c. How many days remain unpaid? The Claimant says that they are claiming 25 days’ holiday pay in the original particulars of claim (page 13) but then reduces this to 21 days’ holiday pay (paragraph 25 at page 33 and paragraph 31 at page 34). Given that they did not work on 25th, 26th and 27th December 2023 and 1st January 2024 that would appear to explain the change from the original particulars. The Respondent avers that the Claimant’s Regulation 13 leave (4 weeks) can only be taken in the year to which it applied. So far as is material, Regulation 13 of the Working Time Regulations 1998 provides that: (3) A worker’s leave year, for the purposes of this regulation, begins— (a)on such date during the calendar year as may be provided for in a relevant agreement; or (b)where there are no provisions of a relevant agreement which apply— (ii)if the worker’s employment begins after 1st October 1998, on the date on which that employment begins and each subsequent anniversary of that date. (5) Where the date on which a worker’s employment begins is later than the date on which (by virtue of a relevant agreement) his first leave year begins, the leave to which he is entitled in that leave year is a proportion of the period applicable under paragraph (1) equal to the proportion of that leave year remaining on the date on which his employment begins. (9) Leave to which a worker is entitled under this regulation may be taken in instalments, but— (a) subject to the exceptions in paragraphs (14), (15) and (17), it may only be taken in the leave year in respect of which it is due, and (b)it may not be replaced by a payment in lieu except where the worker’s employment is terminated. (14) Where, as a result of taking a period of statutory leave in any leave year, a worker is unable to take some or all of the annual leave to which the worker is entitled in that leave year under this regulation, the worker is entitled to carry forward such untaken leave into the following leave year. (15) Where, as a result of taking a period of sick leave in any leave year, a worker is unable to take some or all of the annual leave to which the worker is entitled in that leave year under this regulation, the worker is entitled to carry forward such untaken leave into the following leave year provided it is taken by the end of the period of 18 months from the end of the leave year in which the entitlement originally arose. (16) Paragraph (17) applies where, in any leave year, an employer fails to— (a)recognise a worker’s right to annual leave under this regulation or to payment for that leave in accordance with regulation 16; (b)give the worker a reasonable opportunity to take the leave to which the worker is entitled under this regulation or encourage them to do so; or (c)inform the worker that any leave not taken by the end of the leave year, which cannot be carried forward, will be lost. (17) Where this paragraph applies and subject to paragraph (18), the worker is entitled to carry forward any leave to which the worker is entitled under this regulation which is untaken in that leave year or has been taken but not paid in accordance with regulation 16. (18) Annual leave that has been carried forward pursuant to paragraph (17) cannot be carried forward beyond the end of the first full leave year in which paragraph (17) does not apply. The Respondent’s position is that the Claimant appears to have chosen not to take annual leave, albeit that it is accepted that there was a period in April 2024 when he was unwell, and during that period only unable to take his annual leave (a period in his second leave year) where his accrual of annual leave was 2.33 days for April 2024, and approximately 0.45 days for the days worked in May 2024, a total of 2.78 days. When it comes to the Claimant’s entitlement to additional leave, it is accepted that the Claimant was entitled to 1.6 weeks’ leave in the 2023/24 financial year by reason of Regulation 13A(e) which provides that the additional leave entitlement (e)in any leave year beginning on or after 1st April 2009, 1.6 weeks. The other material parts of Regulation 13A are set out below: (3) The aggregate entitlement provided for in paragraph (2) and regulation 13(1) is subject to a maximum of 28 days. (4) A worker’s leave year begins for the purposes of this regulation on the same date as the worker’s leave year begins for the purposes of regulation 13. (5) Where the date on which a worker’s employment begins is later than the date on which his first leave year begins, the additional leave to which he is entitled in that leave year is a proportion of the period applicable under paragraph (2) equal to the proportion of that leave year remaining on the date on which his employment begins. (6) Leave to which a worker is entitled under this regulation may be taken in instalments, but it may not be replaced by a payment in lieu except where— (a)the worker’s employment is terminated; or (b)the leave is an entitlement that arises under paragraph (2)(a), (b) or (c); (7) A relevant agreement may provide for any leave to which a worker is entitled under this regulation to be carried forward into the leave year immediately following the leave year in respect of which it is due. (7A) Where, as a result of taking a period of statutory leave in any leave year, a worker is unable to take some or all of the annual leave to which the worker is entitled in that leave year under this regulation, the worker is entitled to carry forward such untaken leave into the following leave year. In paragraph 12 of the particulars of response (page 29) it is submitted that the Claimant was entitled to carry over 8 days from the previous leave year. A payment towards this entitlement was paid in May 2024 (page 81).

d. What was the relevant daily rate of pay? The Claimant was paid £27,000 per annum, this is confirmed at page 11 in the ET1 where he says his gross pay was £2,250 per month. There were also tips, for which the Claimant was paid a total of £1,888.68 (gross). This made a total of £28,888.68 (gross). There are normally 233 working days in a year, and it is the number of working days in the year rather than the number of calendar days upon which holiday pay is to be calculated (Leisure Leagues (UK) Limited v Maconnachie

[2002] IRLR 600

. Allowing for the Leap Day on 29th February 2024, that means that there were 234 working days to be taken into account. That makes the relevant daily rate of pay £123.46 per day (gross), based on a 52-week average. Pension Contributions It is not accepted that the Employment Tribunal have jurisdiction to deal with alleged unpaid pension contributions, enforcement of which lies with The Pensions Regulator. Notwithstanding this, it is understood that there were some problems with the Respondent’s accountants who acted as delegates for the business, and that all contributions have been paid over to NEST, and there are no outstanding amounts in respect of the Claimant. Failure to provide written statement of terms and conditions of employment

[14]When these proceedings were begun, was the Respondent in breach of its duty to give the Claimant a written statement of those employment particulars? It is accepted that the job description at page 37 is insufficient to amount to a written statement of terms and conditions of employment which complies in all respects with the requirements of Section 1 Employment Rights Act 1996. It is understood that one was provided by the Respondent, but that a copy cannot be found. At page 59, the Claimant states “In regard to my annual leave entitlement, you confirmed that I had 28 days annual leave as per my contract, which you stated would be rolled over into the next year of employment”. It is submitted that the Claimant must have received such a document in order to be able to refer to it, and that this particular head of claim should fail. In the alternative, if the Tribunal holds that the Claimant was not provided with a written statement of terms and conditions of employment compliant with the requirements of Section 1 Employment Rights Act 1996 it would not be just and equitable for the Tribunal to exercise its discretion to make an award of four weeks’ pay in all the circumstances.

Remedy

[15]How much should the claimant be awarded? Unlawful Deductions: it is submitted that the claim for £36.00 relating to August 2023 and also for £244.00 relating to December 2023 may be of time. It is submitted that anything prior to 5th March 2024 will be prima facie out of time, albeit that it was held in Chief Constable of Northern Ireland v Agnew

[2023] UKSC 33

, that "series" should be given its ordinary English meaning and that what should be included in the series is a question of fact. It held that:• When deciding whether or not deductions form a series, all relevant circumstances should be considered, including their similarities and differences, their frequency, size and impact, how they came to be made and applied, what links them together and all other relevant circumstances.

• It is helpful and important to identify the common fault or "unifying vice" that links the series of deductions together.

• There is no need for the underpayments to form a "contiguous sequence" (that is, next to each other), although that could be a relevant factor in deciding whether they form a series.

• Lawful payments do not necessarily break the series of deductions.

• A gap of three months or more between deductions does not necessarily break the series. It is submitted that the apparent overpayment of £184.40 should be offset against the deductions claimed. Amount Claimed: August 2023 £36.00 December 2023 £244.00 May 2024 (4 days) £487.24 (gross) (12 week average £121.81) Total Claimed £767.24 (amount at page 33 was based on £112.50 per day) Overpayments made: Overpayment compared to payslips £184.40 Deduction for “days off” (page 80) £1090.38 (gross) Total due to Claimant £1,857.62 (gross) (£767.24 + £1,090.38 less £184.40) Holiday pay, 8 days x £123.46 = £987.68 (gross), less £238.85 paid = £748.83 (gross). Pension contributions, it is respectfully submitted that the Tribunal does not have jurisdiction to make an award of compensation in respect of this particular head of claim, and that therefore the Claimant should be awarded nil. Failure to provide a written statement of terms and conditions, if the Tribunal finds that there was such a failure, then it is submitted that the appropriate aware under Section 38 Employment Act 2002 would be 2 weeks’ pay. The Claimant’s 12- week average pay immediately prior to the termination of his employment (including tips) was £609.07 (gross) so 2 weeks’ pay = £1,218.14.