Mr A Teixeira and Mr H Da Silva v Zaika Restaurant Ltd: 2202757/2020 and 2204258/2020

EMPLOYMENT TRIBUNALS

Case No 2202757/2020, 2204258/2020

Between

Mr A Teixeira (First Claimant) and Mr H Da Silva (Second Claimant)Claimant

Zaika Restaurant LimitedRespondent

Before

Employment Judge Norris

Ms A Dannreuther (instructed by Counsel) for claimant

Date 7 March 2021

JUDGMENT

[1]The First Claimant’s complaint of unfair dismissal is well-founded and succeeds. His complaint of notice pay is well-founded and succeeds in part.

[2]The Tribunal does not have jurisdiction to hear the Second Claimant’s complaint of unfair dismissal, which is accordingly struck out. His complaint of notice pay is not well-founded and is dismissed.

[3]The Respondent’s counterclaims succeed.

[4]The Respondent is ordered to pay to the First Claimant the sum of £989.19, being the balance of his redundancy payment. No order is made in respect of the Second Claimant.

REASONS

[5]The Claimants are Mr A Teixeira and Mr H DaSilva. I refer to them as the First and Second Claimant respectively. They worked for the Respondent, a highquality Indian restaurant in London, part of the Tamarind Collection (“Collection”). It was common ground that the Collection comprises three 1 This has been a remote hearing which was consented to by the parties at a PHCM in December 2020. A face-to-face hearing was not held because it was not practicable, no-one requested the same and all issues could be determined in a remote hearing. London restaurants. The First Claimant was a chef and the Second Claimant a waiter at one of them: “Zaika”.

[6]The start and end dates of the Claimants’ employment are contentious and I return to my findings on this point below. However, put neutrally, both Claimants have in common that they were dismissed by the Respondent following the start of the first national lockdown that began in March 2020 as a result of the global pandemic. History of the claims

[7]The matter came before Employment Judge Nicolle on 17 December 2020 for a Preliminary Hearing (Case Management) (PHCM). On that occasion, the First Claimant was represented by Mr N Clark of Counsel (i.e. not the same Counsel as appeared on his behalf at the full Hearing) while the Second Claimant was neither present nor represented; the Respondent was represented, then as now, by Mr Mishra, financial controller for the Respondent and Mr Roy, its accountant. A full Hearing via CVP was listed for 25-26 January 2021.

[8]The Second Claimant had been represented at the outset by the same solicitors as now represent the First Claimant. By the date of the Hearing, they had come off the record for the Second Claimant but advised the Tribunal that they had informed him of the directions made by Employment Judge Nicolle. These had included that the Second Claimant was to confirm his dates of continuous employment and whether he intended to pursue his claim of unfair dismissal. The parties were to agree a bundle of documents and to exchange witness statements, the latter to be done by no later than 4 PM on 14 January 2021.

[9]In the event, the Second Claimant neither complied with the direction in relation to his dates of employment nor produced a witness statement before the Hearing commenced. A bundle had been produced by the Respondent.

The Hearing

[10]At the Hearing, which took place as listed on 25 and 26 January 2021, I had before me witness statements from Mr Mishra and Mr Roy (the latter having also produced a supplemental statement) which were in very similar terms, and a witness statement from the First Claimant which was password protected but the password had not been supplied so I could not open it until the first morning of the Hearing. Since the statement was very short, however, I read it at the beginning of the Hearing. I also had the trial bundle of just under 350 pages.

[11]During the first morning, the First Claimant’s representative emailed some payslips from January to March 2019 to the Tribunal and these were also considered during the Hearing.

[12]I heard evidence from Mr Mishra and Mr Roy on behalf of the Respondent on the first day. They readily accepted that the Respondent did not follow any procedure in dismissing the Claimants and consequently I indicated that it would inevitably be my finding that their dismissal was unfair, at least in procedural terms. However, there remained an issue as to whether the Tribunal has jurisdiction to hear the Second Claimant’s complaint of unfair dismissal, because it was argued by the Respondent that he did not have two years’ service, and whether the dismissal(s) was/were also substantively unfair.

[13]In addition, the Respondent counterclaims against both Claimants for money paid to them under the coronavirus job retention scheme ((CJRS) - also known as the furlough scheme) if my finding is that their employment ended on the dates set out in the ET1s. Again, I return to the evidence and my findings on these points below.

[14]Both Claimants claim unfair dismissal, unauthorised deductions from wages and breach of contract (notice pay). It was reasonably clear on the face of the evidence that the Respondent would succeed in showing that the reason for the dismissals was redundancy, the place of work in which both Claimants were employed having closed temporarily and hence the Respondent’s situation was likely to meet the statutory definition of redundancy at section 139(1)(b)(ii) Employment Rights Act 1996 (ERA). This was asserted by the Respondent and it was conceded on behalf of the First Claimant that no other reason was being put forward, nor did the Second Claimant positively assert any other reason. It was common ground that the place in which the Claimants worked had closed, temporarily, in March, and that it was not known when it would reopen.

[15]By the end of the first day, it was therefore also clear that I would have to determine whether, and if so, when, the Claimants (or either of them, assuming the Tribunal had jurisdiction to hear the Second Claimant’s unfair dismissal complaint) would have been dismissed if a fair procedure had been followed; and, further, that I would have to determine their correct pay in order to establish whether they had received less than their entitlement to wages, including their pay in lieu of notice and/or if the counterclaims succeeded, where any remedy might lie.

[16]The difficulty I had in conducting such analysis was that neither the First Claimant nor the Respondent’s witnesses had addressed the redundancy selection process in their witness statements, and the Second Claimant had, as I have indicated above, not produced a witness statement at all. It transpired in any event that it was neither Mr Roy nor Mr Mehta who had made the selection during the redundancy exercise but a Mr Dhaliwal (a director of the Respondent), who had also not made a statement and was not in attendance on the first day of the Hearing.

[17]Accordingly, in order to be able to deal with the “Polkey” point (which had in fact been clearly flagged at the PHCM by EJ Nicolle and set out in his written case management summary), I ordered that both the Second Claimant and Mr Dhaliwal were to produce witness statements overnight and Mr Dhaliwal, who I was told had gone to India, was to be asked to give evidence via CVP link the following morning.

[18]So that I could make an assessment of the evidence if Mr Dhaliwal was unavailable, the First Claimant was also asked to address overnight the question of how many chefs there were in the restaurant, how many had been dismissed (so far as he knew) and why he was asserting that he should have been retained rather than the others; further, he was to set out why he was entitled to the tronc payments he was claiming.

[19]All those required to make statements then did so, and on day two the Tribunal heard from Mr Dhaliwal, who was cross examined by Ms Dannreuther and (briefly) by the Second Claimant as well as answering some questions from me; we also heard from the First Claimant and then from the Second Claimant before submissions from Ms Dannreuther on behalf of the First Claimant, the Second Claimant in person and then the Respondent. I reserved my decision.

The Law

[20]A person with at least two years’ continuous employment has the right not to be unfairly dismissed (section 108 Employment Rights Act 1996 (ERA)).

[21]It falls to the employer to show the reason or, if more than one, the principal reason for dismissal, and that reason must be potentially fair. Redundancy is a potentially fair reason for dismissal (section 98(2)(c) ERA). The Tribunal must then determine the question of whether the dismissal is fair or unfair in all the circumstances (including the size and administrative resources of the employer) by considering whether the employer acted reasonably or unreasonably in treating that as a sufficient reason for dismissal by reference to equity and the substantial merits of the case (section 98(4) ERA). In other words, the Tribunal must consider whether dismissal was in the “band of reasonable responses”. The Tribunal is not permitted to substitute its own decision of whether it would have dismissed the employee(s).

[22]The statutory definition of redundancy includes (at section 139(1)(b)(ii) ERA) the fact that the requirements of the business for employees to carry out work of a particular kind in the place where the employee was employed by the employer have ceased or diminished. These words “cease” and “diminish” mean either permanently or temporarily and for whatever reason (section 139(6) ERA).

[23]If a dismissal is substantively fair but procedurally unfair, in assessing remedy, the Tribunal must have regard to the authority of Polkey v AE Dayton Services2 by considering whether to make any adjustment to the compensatory award to reflect the possibility that the employee(s) would still have been dismissed had 2

[1987] UKHL 8

a fair procedure been followed. This assessment is usually expressed as a percentage chance.

[24]The ACAS Code of Practice on Disciplinary and Grievance Procedures (giving rise to a potential uplift if it is not followed in a dismissal situation) is explicitly not applicable to dismissals for redundancy.

[25]Pursuant to section 13 ERA, an employee has the right not to suffer unlawful deductions from their wages. For this purpose, a deduction occurs when there is a deficiency in the amount properly payable by the employer.

[26]When considering the amount of notice payable to an employee, the employer must have regard to the greater of any contractual provision and the requirements under section 86 ERA, which provides for an employer to give to an employee one week’s notice for each complete year of service up to a maximum of twelve weeks’ notice after twelve years’ service.

[27]All of the above are to be determined according to the normal civil standard of proof, i.e. on the balance of probabilities. Findings of fact and conclusions

[28]I have concluded that it would be helpful to detail my findings and conclusions in a series of questions and answers, and these are set out below: Was there a redundancy situation and were the Claimants placed on furlough?

[29]The Respondent’s evidence, which inevitably could not be and was not contested, was that with effect from 20 March 2020, pubs and restaurants across the UK were ordered by the Government to close as part of the first national lockdown. All the three restaurants in the Collection closed with effect from March 17 and did not reopen for some months; Zaika (in which both Claimants worked) remained closed until 8 September 2020. That was Mr Dhaliwal’s evidence, which was not contested.

[30]Zaika did not operate takeaway delivery services during lockdown (although I heard that the Second Claimant had previously worked on the takeaway counter) and accordingly from that date had no revenue. The Respondent obtained advice about the CJRS and took steps to deal with the situation.

[31]The Respondent’s evidence, which I accept, was that notwithstanding the provisions permitting employees to be placed on furlough and the potential to recoup their wages via the CJRS, a decision was taken to carry out a number of redundancies. There could be no guarantee that the Respondent would still require the same number of staff once lockdown was lifted, as to which no date had been fixed. The view was taken by its management that if the Respondent gave notice early, those employees who were thus dismissed would be able to look around for alternative employment at once. They would not be misled by false assurances that they would be able to return to work as before, once restrictions were removed and the premises reopened, but they could be kept on furlough pay in the meantime for as long as the CJRS was operational.

[32]I accept Mr Dhaliwal’s evidence that even prior to the first lockdown, business had reduced significantly and that he was not optimistic that footfall would increase to pre-pandemic levels quickly or possibly at all. It is unfortunate that none of this was discussed adequately (or in the First Claimant’s case, at all) with the employees. I accept that there was a potential redundancy situation.

[33]It was not disputed that on accordingly, on 22 March 2020, Mr Roy emailed staff in the Collection advising them that as all three restaurants had been closed, and in light of government measures announced to help employers pay salaries, they would “reimburse” 80% of wages up to a cap of £2,500 per month.

[34]This was followed up on 31 March 2020 by a further email from Mr Roy, again intended for all colleagues across the Collection, and was headed “Furlough letter – variation of contract”. This indicated that in light of the furlough scheme that had been announced by the government, all employees were being requested to “agree” to be furloughed for an initial period of 12 weeks from 1 March 2020; they were informed that if the restaurants could reopen before the end of June, they would be advised and asked to return to work. This, it was suggested, was an alternative to other exercises such as redundancies.

[35]The email also stated (inaccurately, but I find on balance unintentionally so) that employees would be paid a sum amounting to “80% of the employment costs which [the Respondent was] able to claim under the scheme”, i.e. a maximum of £2,500 for each employee per month and that once the furlough scheme ended, pay would return to normal. In other words, I consider that the Respondent was attempting to say that it would pay 80% of wages in compliance with the scheme and reclaim that from the CJRS, rather than (taking the words literally) that it would only pay over 80% of what it recovered from the scheme. Employees were asked to reply by email if they did not agree.

[36]Neither Claimant emailed back refusing to be placed on furlough. In this decision, I describe these emails of 22 and 31 March from Mr Roy as the “furlough” emails.

[37]On 1 April 2020, the First Claimant’s line manager Mr Daniel (the Head Chef) spoke to the First Claimant on the telephone and advised him that he was being dismissed. Mr Roy emailed the First Claimant the following day to confirm the discussion that he was being given notice of termination. The First Claimant responded shortly afterwards stating “I am not accepting any notice at this time because it is my employee right and I have no other alternative job and I want support my family and pay rent”. Mr Roy replied again on the same day indicating that the First Claimant’s acceptance was not required but that the Respondent would “pay all your dues to help you in this difficult time”. The First Claimant was the only chef to be made redundant in this way or at all.

[38]On 8 April 2020, the Second Claimant received a phone call from the Head Chef, also advising him that his contract was being terminated. There is a minor dispute over the exact words used by the Head Chef, but again, Mr Roy confirmed the termination in writing by email the same day. Mr Roy initially said that the date of termination was 8 March, but when this was queried, acknowledged that he had made a mistake and that he should have said 8 April. According to the Second Claimant’s claim form, Mr Roy stated, “Company has decided to let you go as the restaurant is closed and Company is unsure about trading conditions as and when the restaurant reopens”. The Second Claimant was one of seven “front of house” (FOH) staff, in addition to two managers, made redundant. FOH includes waiters.

[39]Neither Claimant was offered the right of appeal. Both remained on payroll until the end of July, and I return to the significance of this below. They were processed as leavers and issued with P45s showing their leaving date from the Respondent as 31 July 2020. Neither Claimant having agreed to be placed on furlough, I find that despite the Respondent’s intentions, neither of them was so placed. I also return to this point below. What were the First Claimant’s employment dates and salary?

[40]The First Claimant started work for the Respondent in August 2015. His job description was “tandoor chef”. According to his new starter form (presumably used for internal payroll purposes), his starting salary was £25,000 per year. However, his offer letter gave his starting salary as £16,380 gross, payable monthly in arrears, although his contract of employment said that his basic salary was £15,725 and his employee details form, signed on 3 August 2015 by the First Claimant and an unknown director or manager says £19,000.

[41]In addition to the First Claimant’s starting salary, a letter dated 3 August 2015 from the “troncmaster” Mr Sahu indicated that there was a “tronc” scheme in operation with the Respondent, the rules of which were apparently provided separately, though they were not in the bundle, but under which, the First Claimant was “eligible” to receive payments in addition to his basic pay. These “tronc” payments were expressly discretionary and did not form part of his contract of employment. Indeed, as is customary in the hospitality sector, the tronc was operated independently of the Respondent, though I return to the unique circumstances of the tronc in this particular case below.

[42]So far as notice pay was concerned, the First Claimant was entitled to the statutory minimum, i.e. for up to two years’ service he would receive one week’s notice and thereafter a minimum of two weeks plus one additional week for each continuous year of employment. Accordingly, by the date of dismissal, whether that was 29 April or 31 July 2020, he was entitled to four weeks’ notice from the Respondent because he had more than four but less than five years’ service.

[43]As regards the First Claimant’s salary, my attention was also drawn to a letter in the bundle which was not dated but which was signed by Mr Dhaliwal, headed “salary confirmation” and briefly stated that the letter was to confirm the First Claimant’s new salary would be £30,000 per annum from 1 May 2018. This letter did not suggest that additional tronc payments formed part of the First Claimant’s contract or that the rules of the discretionary tronc scheme had been revised.

[44]Other than payslips, there were no other documents in the bundle relating to the First Claimant’s salary; however, I was told by his Counsel on the first day that at some point he was told his salary would increase to around £34,000, or in other words to just over £2,309.50 per month net, but he had not been given any letter to reflect this.

[45]The payslips that were in the bundle from May 2019 indeed showed that net figure, but this was said to comprise basic pay of £1,604.16 and tronc payments of £1,229.16. There was no explanation from either party as to how these figures had been arrived at, and accordingly overnight on the first day as I have indicated above, I ordered there to be supplemental witness statement served by both parties dealing with the question of the First Claimant’s pay.

[46]The First Claimant confirmed in the supplemental witness statement that he served on the morning of day two of the Hearing that in May 2018, he had been offered a role with one of the Respondent’s competitors but had spoken to Mr Fathi, Financial Controller, to hand his notice and had explained that the salary on offer with the competitor was £2,000 more; Mr Fathi agreed to match this, so the First Claimant stayed with the Respondent. In May 2019, he had again approached Mr Fathi, who this time saw him with the Head Chef, and they agreed to increase his salary again to £34,000. I understand that the “Mr Fathi” being referred to here is in fact Mr Fateh Dhaliwal, director of the Respondent.

[47]In the event, it was not disputed by the Respondent that the Claimant had been offered an increased salary in order to retain his services as he was offered a job at another restaurant. The dispute lay in how that salary should be calculated. I return to the impact of the tronc below, but it is my conclusion that the First Claimant was entitled to a salary of £34,000.

[48]As to the end date of the First Claimant’s employment, it transpired during evidence that the furlough emails had not been sent to the First Claimant at all. It was explained that the emails were ostensibly sent to a single addressee - Mr Roy himself - but blind copied to over a hundred other employees and, in accordance with their obligations of confidentiality under data protection law, this was in order not to disclose the email addresses of their employees to all other staff. The intention was undoubtedly to include all employees across the Collection. However, on looking during the Hearing at the list of addressees, it was agreed by the Respondent that the list did not contain the name of the First Claimant, although it did contain the Second Claimant for both furlough emails, and indeed the Second Claimant did not dispute that he had received them.

[49]The Respondent’s evidence, which I accept, was that the directors thought although the First Claimant was entitled only to four weeks’ notice, he could be retained on the payroll for as long as the furlough scheme was operational and that they had intended to give, in terms, far longer notice than his entitlement, and he was kept on the payroll until the end of July and paid at 80% of his normal pay throughout that period.

[50]However, as a matter of law, I find that the First Claimant’s employment ended on 29 April 2020, four weeks after he was told he was being given his contractual notice. Further, since the First Claimant did not receive the furlough emails, much less agree to be placed on furlough, the purported notification was not effective. He was entitled to receive 100% of his salary at the rate of £34,000 per annum throughout that notice period. What were the Second Claimant’s employment dates and salary?

[51]The Second Claimant was in a slightly different situation. Although his start date had been an issue before Employment Judge Nicolle, it was quickly agreed before me that he began working for the Respondent in June 2018, although he had previously worked for Imli Limited/Tamarind Kitchen, another restaurant in the Collection, between 2017 and 30 April 2018. That previous service did not count towards his continuous employment with the Respondent and so by the date of the first lockdown, he did not have two years’ continuous service.

[52]The Second Claimant did, however, as I have said above, receive the two furlough emails regarding the reduction in his pay to 80% as a result of the Respondent taking advantage of the furlough scheme, although he also did not expressly agree to any reduction. Further, as he had not yet completed two years’ service, his notice entitlement, which also mirrored the statutory minimum in his contract, was just one week.

[53]The telephone call from his manager notifying the Second Claimant that he was being given notice took place on 8 April 2020 and therefore his entitlement was to one week’s notice which would take him to 15 April 2020.

[54]Like the First Claimant, on the face of it, the Second Claimant was kept on the payroll until the end of July, by which time he would have had two years’ service. However, I conclude that the Second Claimant’s dates of employment were from June 2018 to 15 April 2020. Accordingly, by the effective date of termination, he did not have two years’ complete service with the Respondent and the Tribunal does not have jurisdiction to hear his unfair dismissal complaint; nor was he entitled to a redundancy payment. What were the Respondent’s actions after notice had been given?

Conclusions

[55]To the extent this is relevant, Mr Mishra claims to have tried to call the First Claimant in order to re-hire him and the evidence in the bundle shows that five calls were made from Mr Mishra’s mobile phone number to the First Claimant (on 25th June, 7 August, 11th August, 18th August and 30th September 2020). The call log in the bundle does not show whether these calls were picked up but Mr Mishra’s evidence is that the calls were unsuccessful and I accept that evidence. He says that there was no facility to leave a voicemail message, which was not contradicted by the First Claimant.

[56]Mr Mishra also gave evidence that he tried to contact the Second Claimant to offer him work too, and the bundle shows that there were also two calls, on 4 June and 12 August to the Second Claimant but again not whether those calls connected.

[57]Having unsuccessfully tried to contact the Claimants, as I have said above, the Respondent issued them both with P45s. What relevance, if any, did the tronc scheme have on the Claimants’ pay?

[58]Dealing with the question of the tronc, I find that on the face of it, as is usual with such schemes, this was a discretionary payment to which neither Claimant was initially entitled. Further (although ultimately irrelevant to the issues), I accept the Respondent’s evidence that pursuant to the furlough payment scheme, tronc payments were not to be used when calculating furlough pay. This is based on the specific example used in the government’s website article “Steps to take before calculating your claim using the coronavirus job retention scheme”. It says: “You cannot include the following when calculating wages: payments made at the discretion of the employer or a client – by the employer or client was under no contractual obligation to pay, including: any tips, including those distributed through troncs…”.

[59]Mr Mishra and Mr Dhaliwal gave oral evidence about the tronc. Mr Dhaliwal elaborated on the way in which the Respondent calculates pay, which went some way to explaining the different amounts given as salary in the First Claimant’s paperwork when he joined. Mr Dhaliwal said that the Respondent starts by taking the National Minimum Wage (or, in the Claimants’ case, National Living Wage) and then supplements this with a tronc payment. He said that staff do not want their pay to fluctuate so the Respondent tries to keep it stable. In months when the Respondent does not hit the figures that would be required for the tronc to pay out the amount to keep everyone’s pay stable, the directors top up the tronc “from their own pockets”.

[60]Clearly this is unusual because it contradicts the express provision that the tronc is discretionary and (by implication) only payable if the Respondent is in funds. If the Respondent simply tops up the funds in less profitable months, very little discretion is actually involved and as Mr Mishra said in crossexamination, if the Respondent is open, the tronc is effectively “guaranteed”. This is of course something for which the Respondent is not criticised. It does mean however that the distinction in the payslips between what I will call “basic” pay (“house”) and tronc pay is somewhat artificial. The only variation would appear to be where an employee works overtime. The employees can be paid more, but apparently are not paid less each month.

[61]It was put to Mr Dhaliwal that the First Claimant could have been paid less from the tronc if his performance had been poor, but Mr Dhaliwal said that the Respondent would never cut anyone’s tronc payment. He repeated several times that the Respondent tries its level best to ensure employees’ wages do not vary, because the directors are aware that the employee’s housing and transportation costs are not reduced, for example, in January and August (when I infer the restaurant is less busy and hence the takings – and tips – are lower). Mr Dhaliwal explained that the Respondent had been pressured by the First Claimant into increasing his pay, and that in their haste to issue the letter confirming the rise to £30,000, an error had been made in that the Respondent did not split out the two elements of “house” and “tronc”. He sought to rely on the payslips which did continue to show those two elements.

[62]I conclude that the First Claimant’s pay was not contingent on the tronc by the date of his dismissal. If there was an error in 2018 when the pay was increased to £30,000, in not making it clear that part of the First Claimant’s wages were even notionally discretionary, it could have been corrected but was not; it was perpetuated until his dismissal in 2020. By then, as I have found, his annual pay had increased again to £34,000 or £2,833.33 gross per month. I accept Ms Dannreuther’s submission that regardless of the expressly discretionary nature of the tronc payments, the reality of the situation from various sources - the total shown on the payslips, the 2018 letter and the Claimant’s understanding, determined objectively - was that he was entitled to a flat monthly salary payment. The fact that the Respondent did not take any revenue once it had closed down, and therefore no tronc payments would be payable under a properly discretionary tronc scheme, therefore has no impact on the First Claimant’s entitlements.

[63]The Second Claimant’s position was different. His contract showed that he was entitled to £17,150 per annum, which, without tronc payments, would equate to £328.90 per week or £7.83 per hour for a 42-hour week (this was the correct rate for the National Living Wage (NLW) from 1 April 2018). It appears that by the date of termination, this had increased to £17,950 per annum or £344.25 per week. However, his gross monthly pay in February 2020 for instance was £1,864.16 excluding overtime, the equivalent of £466.04 per week. It does not appear that he was ever given a similar letter to the one issued in 2018 to the First Claimant and therefore I conclude that the Second Claimant remained entitled to a basic salary equivalent to the NLW, plus discretionary tronc payments. In the Second Claimant’s case, the tronc payments were discretionary, notwithstanding that when the restaurant was open, the Respondent would undoubtedly have continued to pay tronc wherever possible, in light of the evidence to which I have referred above.

[64]However, even though the Second Claimant did receive the furlough emails, he did not expressly agree to receive a reduced salary during his notice period. His silence in response to those emails cannot be taken as consent to a variation of his contract, even though they purport to say that a response is only required if the employee disagrees with what is being proposed. As with the First Claimant, there had been no prior discussion and accordingly these emails do not simply confirm any agreed variation. Hence, the Second Claimant should have been paid 100% of his basic wages, i.e. £344.25 per week or £366.24 from 1 April 2020 (when the NLW increased), until his dismissal, and was entitled to one week’s notice at his basic rate of pay. What was the likelihood of a fair dismissal if a fair procedure had been followed?

[65]As I have noted above, it is essential to determine the likelihood that the First Claimant would have been dismissed in any event, had a fair procedure been followed (the issue not being relevant to the Second Claimant since he did not have sufficient continuous service). According to the First Claimant’s supplemental statement produced for the second day of the hearing, he worked in a team of ten chefs and was second-in-command but nonetheless was the only one to be dismissed. He believes that if there had been a genuine redundancy situation whereby they were all pooled together, one of his colleagues would have been removed and he would have been retained.

[66]The First Claimant said in both his statements that he had obtained a degree (in “food production and pastries”) and experience in other countries before coming to the UK and had an ability to work across any of the five departments in the restaurant. He sought to distinguish himself from his colleagues, who he said were all based in only one of the departments (pastry, pantry, curry, tandoor and pass).

[67]I observe for completeness that although he made no corrections to the contents of either his original or his supplemental statement, and although this was advanced on his behalf in Ms Dannreuther’s cross-examination of Mr Dhaliwal, the First Claimant denied in his own cross-examination that he is a graduate. Indeed, his application form says only that he had studied for a year before obtaining a “diploma in hotel managment” (sic) while he was in Goa. In any event, both parties agree that the First Claimant was not working for the Respondent as a “speciality” chef.

[68]However, the parties’ approach to this common ground differs. The First Claimant says that his versatility and flexibility demonstrate his value to the Respondent and that he should have been retained – and would have been, if a fair procedure had been followed, with consultation taking up to a month (or more) if conducted fairly, with all the chefs being pooled.

[69]The Respondent, through Mr Dhaliwal, says the opposite. Mr Dhaliwal said that the First Claimant was a “helper” in all five departments but could not run any of them. He did not accept that the First Claimant was essential to the business. He clearly considered it absurd that he would retain a non-specialist chef in preference to a specialist and did not accept Ms Dannreuthers’ proposition that if he had consulted all the chefs, one or two others could have been offered redundancy instead. His other chefs had, he said, up to twelve or thirteen years’ service with the Respondent. The First Claimant did not challenge this.

[70]Mr Dhaliwal asserted that the First Claimant was in a pool of one: non-specialist chefs, since he was the only non-specialist. He absolutely refuted the suggestion that the First Claimant was a specialist in all five sections (indeed, he said that “pass” is not really a section but the area where the food is sent out); he said no human being in an Indian kitchen has five specialities and that anyone who was so highly specialist would not be working for the Respondent earning £30,000 a year but in a Michelin-starred restaurant earning six figures.

[71]Therefore, while Mr Dhaliwal accepted that the First Claimant could be put to work in any of the sections, it was as a commis chef (helper, albeit a senior one) and not as the chef in charge; the others would not move around in this manner at all and would stay in their speciality sections. The First Claimant’s job description says “tandoor chef”, but Mr Dhaliwal said that the other tandoor chef, Sumnath, was much more senior than the First Claimant.

[72]It was put to Mr Dhaliwal in cross-examination that rather than retain three curry chefs, the Respondent could have made one of them redundant and retained the First Claimant. Mr Dhaliwal said that if the Respondent had wanted to decrease the quality of the food that would have been an excellent suggestion, but since it did not, he had taken the decision to make the First Claimant redundant instead. Given that each chef works only five days a week, that would mean that with a reduction to two curry chefs, when one was on holiday, the First Claimant would have to step up and run the curry section two days a week. Mr Dhaliwal was clearly wholly unconvinced that the First Claimant was sufficiently skilled to do so.

[73]I accept Mr Dhaliwal’s assessment of the situation; he is, as he said, the owner of the restaurant and ran it, and was therefore well-placed to decide on the respective merits or otherwise of those employed by him, even though it would clearly have been desirable to have committed that assessment to writing at the time and to have followed the correct legal requirements (which however as I have noted in the Law section above do not include the ACAS Code of Practice when considering a redundancy situation).

[74]In any event, it is not for the Tribunal to substitute a view of the commercial decisions that might have been taken, provided the pool is potentially reasonable. I accept Mr Dhaliwal’s evidence that in the run-up to the first lockdown, the Respondent’s trade was down by 60 or 70% and that it was reasonable for him, in all the circumstances, to contemplate making redundancies, rather than to keep all the employees on furlough for an indefinite period. It was not, in those circumstances, objectively unreasonable to determine that the First Claimant was in a pool of one (of non-speciality chefs) and that he should be dismissed for redundancy.

[75]I also find on the balance of probabilities that even if the Claimant had been pooled with all the Respondent’s other chefs, they had all been placed at risk of redundancy and (for example) a matrix had been drawn up by Mr Dhaliwal, the irresistible conclusion is that the First Claimant would have been the lowest scorer and that Mr Dhaliwal would have proceeded to individual consultation with him and him alone. It was clear that Mr Dhaliwal did not want to lose a speciality chef; that is a commercial conclusion that he was entitled to reach and in which the Tribunal is not permitted to interfere and/or to substitute its own view, even if my view differed from Mr Dhaliwal’s.

[76]I also note for completeness that in addition to refuting that he had a degree, notwithstanding what it said in his witness statements, the First Claimant also appeared to accept in his oral evidence that he was occasionally late for work, although adding that he would contact the Head Chef to advise him if he was delayed coming in. I entirely accept that this was not something that was of sufficient gravity to merit a formal disciplinary warning, but it was something that the Respondent would have been entitled to take into account, as Mr Dhaliwal said he did, when considering who might be made redundant. This is not the same thing as saying that the First Claimant was dismissed for performance or conduct issues; had there been no global pandemic, he might never have been dismissed or even formally warned at all, but his less than perfect attendance was a legitimate, though minor, factor in Mr Dhaliwal’s overall assessment.

[77]The final reason Mr Dhaliwal gave was that, in terms, he was not persuaded of the First Claimant’s loyalty to the Respondent. He said that on more than one occasion, the First Claimant had waited until the Respondent was short-staffed to say that if he did not receive a pay rise, he would leave (on one occasion, to join a competitor). It was common ground that the First Claimant had indeed intended to give notice that he was leaving to join another Indian restaurant, and I accept that this made him less reliable in Mr Dhaliwal’s eyes. Again, this was a legitimate factor to take into account.

[78]Overall, then, I consider that while quite clearly no procedure was followed in conducting the redundancy exercise, there is 100% likelihood that if the Respondent had followed a fair procedure, the outcome would still have been the First Claimant’s redundancy. Accordingly, while the dismissal was procedurally unfair, the outcome would have been the same in any event. Further, given that I have accepted that the First Claimant could reasonably have been placed in a pool of one had Mr Dhaliwal put his mind to it, I consider that the redundancy would still have occurred when it did, i.e. that the First Claimant would have been given notice on 1 April to terminate on 29 April 2020.

Remedy

[79]I do not accept the submissions from Ms Dannreuther either that the chances of dismissal were 1:10 (on the basis that there were ten chefs) or that it would have taken the Respondent eight weeks (or indeed any weeks) to conduct consultation meetings, for the simple reasons that the First Claimant was reasonably not considered to be on a par with his nine colleagues and was not on any analysis in a pool with 38 others; this number included non-kitchen staff such as waiters and others from “FOH”. Ms Dannreuther’s argument that the Respondent ought to have conducted something in the order of 114 meetings at the rate of around three a day before dismissing the First Claimant is not sustainable in the circumstances that pertained at the time.

[80]In the circumstances:a. The First Claimant’s claim of unfair dismissal is well-founded and succeeds but there is 100% Polkey reduction of any compensatory award.

b. The Respondent did not pay the First Claimant a redundancy payment and therefore he is entitled to receive a basic award.

c. The Tribunal does not have jurisdiction to hear the Second Claimant’s claim of unfair dismissal nor any claim for a redundancy payment.

d. The First Claimant’s complaint of notice pay is well-founded and succeeds to the extent that he was not paid the correct amount for the four weeks of his notice in April 2020.

e. The Second Claimant’s complaint of notice pay is not well-founded and is dismissed.

f. However, both Claimants were ultimately paid in lieu of their notice (see calculations below).

g. The Respondent’s counterclaims succeed because both Claimants continued to be paid and to accept money after what they considered to be their effective date of termination as set out in their claim forms.

h. In each case, although they were underpaid once they were “placed on furlough”, the Claimants must give credit for sums received in excess of their contractual entitlement.

i. However, in the First Claimant’s case the Respondent still owes him money because the shortfall in what it has paid him is greater than the amount he owes the Respondent.

Remedy

[81]I assess the amounts payable in each case as follows:a. First Claimant: i. March gross pay owed £2,309 - received £1,121.04 – shortfall = £1,187.96 ii. April gross pay owed £2,232.03 (notice pay) - received £1,145.80 – shortfall = £1,086.23 iii. Redundancy payment £538 x four years = £2,152.00 – not yet paid shortfall = £2,152.00 iv. May, June and July owed £0 - received £1,145.60, £1,145.60 and £1,145.80 = £3,437 overpaid The amounts paid in May to July extinguish the shortfalls in March and April’s pay. The overall shortfall is therefore £989.19 ((i) + (ii) + (iii) - (iv)) and that is the amount that the Respondent is ordered to pay the First Claimant, being the balance of his basic award/redundancy payment, which should be paid without deduction. It is a matter for the Respondent to regularise its position vis-à-vis the CJRS in this regard, given that it has recouped money from the scheme to which it is not, on the face of it, entitled.

b. Second Claimant: i. March gross pay owed £1,495.85 – received £1,196.67 – shortfall = £299.18 ii. April gross pay (one week’s wages, one week’s notice) owed £795.70 – received £1,196.67 – £400.97 overpaid iii. May, June and July owed £0 - received £3,590.01 iv. Total overpaid = £3,691.80. Again, the Respondent will need to regularise the position with the CJRS. It indicated during the Hearing that it would not seek recovery of the overpaid amount from the Second Claimant and therefore I make no order in this regard.

[1]The Claimant is one of two former employees of the Respondent who brought proceedings in 2020 relating to their dismissal for redundancy following the first COVID lockdown in April of that year, at which time the Respondent (a highend Indian restaurant in London called Zaika) and the other two restaurants in the group together known as “Tamarind Collection” were forced to close.

[2]A final hearing of both claims took place on 25-26 January 2021. In evidence, the Respondent accepted that it had not followed any procedure in dismissing the two claimants. In a Reserved Judgment with reasons sent to the parties on 8 March 2021, I decided that the claims of the Second Claimant, Mr Da Silva, should be dismissed because he lacked the necessary continuous service to bring a claim for unfair dismissal or a redundancy payment, but that the claims of the First Claimant, Mr Teixiera, succeeded. I ordered the Respondent to make payments to him for unlawful deductions from wages, redundancy and notice pay, offsetting what had already been paid by the Respondent.

[3]In relation to the award of compensation for unfair dismissal, I decided that the Respondent’s Director, Mr Dhaliwal, who had made the decision to dismiss, had not put his mind to the pool for selection but that had he done so, he would have concluded that Mr Teixiera, to whom I now refer in this decision as “the Claimant”, would have been in a pool of one and therefore would have been dismissed on the same date (29 April 2020); and accordingly that there was to be 100% Polkey reduction. The Claimant successfully appealed those findings as to the compensatory award and the EAT (Tayler J) remitted the matter to the same Tribunal for rehearing. Mr Da Silva did not appeal.

[4]The Respondent was not legally represented at the hearing in January 2021, but Mr Stevens appeared before HHJ Tayler in the EAT and was then instructed again by the Respondent on a direct access basis for a remittal PHCM, which took place in March 2023, as well as for the rehearing. Ms Dannreuther of Counsel (instructed by Atkinson Rose solicitors) had represented the Claimant at the first hearing and in the EAT, but was not available thereafter. The Claimant was accordingly represented by Ms David of Counsel at the remittal PHCM and by Mr Hoang-Brown of Counsel at the rehearing.

[5]At the remittal PHCM, the rehearing was listed. Orders were made for disclosure relevant to the remitted issues only (below), including specifically in relation to remedy, and for the Respondent to produce an agreed bundle by 5 May 2023. Witness statements were to be exchanged simultaneously by 19 May 2023. The parties were reminded of the requirements of the overriding objective. Issues and Law

[6]The issues to be considered at the rehearing were agreed to be as follows: Polkey reductiona. What redundancy procedure would the Respondent have adopted if it had acted fairly in all the relevant circumstances of the case, including its size and resources? In particular, the Tribunal should consider the following questions: i. Would there have been a warning/consultation process and, if so, what would the nature, content and period of that warning/consultation process have been? ii. What would the outcome of any warning/consultation process have been? In particular, would there have been either

(a) changes to the decision to make redundancies, the selection pool or the selection criteria or

(b) offers of alternative employment? iii. What selection criteria would fairly have been arrived at by the Respondent? iv. What selection pool, including as to size, would fairly have been arrived at by the Respondent?

b. How likely was it that the Respondent would have dismissed the Claimant on the ground of redundancy following a fair procedure?

c. If the Claimant would have been dismissed, or there was a chance of the same, when would the dismissal have occurred? Quantum

d. Has the Respondent shown that the Claimant failed to take reasonable steps to mitigate any loss he may prove?

e. To what compensation is the Claimant entitled, if any?

[7]I have reminded myself of the law as set out at paragraphs 10 to 24 of the EAT’s remittal judgment and the authorities to which the parties referred in their submissions at the rehearing. The Rehearing

[8]HHJ Tayler had observed at the end of his judgment that I had been “hampered by the fact that the parties had not properly prepared to deal with the Polkey issue”. Given the history of the case, it was disappointing that at the rehearing, which took place as listed on 22-23 June 2023, the parties were still not properly prepared to deal with the Polkey issue.

[9]The Claimant had made minimal changes to his original statement, adding just 16 lines under the heading “Alternative to Redundancy” and seven lines in relation to mitigation efforts over the three years since his dismissal (I return to this below). However, very little effort had apparently been expended addressing the other issues to be considered at the rehearing and many errors - not just of a typographical nature - in the original remained, including:a. The new statement still referred to the final hearing as being listed for 25-26 January 2021 and maintained, implausibly, “To this day, I still do not know the reason why I was dismissed”;

b. Errors of fact had not been corrected, for instance in relation to the Claimant having obtained a degree in “food production and pastries” in Goa in 2000. The Claimant had repeated this assertion in his supplementary witness statement prepared for the 2021 hearing but accepted in cross-examination at that hearing (and I found accordingly) that this was not true; he had in fact studied for a year and was then awarded a diploma in hotel management;

c. The new statement continued to allege that there had been a breach of the “ACAS code of conduct” (as did the schedule of loss, which sought an uplift of 25% for failure to comply with the Code). I had found in my previous decision that the Code is “not applicable to dismissals for redundancy”;

d. The Claimant had not taken out the three paragraphs relating to his claim for unpaid wages, which had been determined in the previous decision;

e. The original statement said that the Claimant had recently started a new role as a “Senior Chef De Party” [sic] at Dishoom and was waiting for his new contract. The 2023 statement says that he left that role in August 2021 but devoted just seven lines to his subsequent employment in the intervening two years;

f. The original statement contained a table detailing what were said to be the Claimant’s mitigation efforts. This table had five entries, suggesting that the Claimant had spent a total of just eight hours pursuing new roles (including two hours applying for Job Seekers’ Allowance) over five separate days in August and September 2020. There was no addition or alteration to this in the 2023 statement.

g. There was no cross-referencing to the (limited) remedy documents in the new bundle, several pages of which had been entirely redacted so as to show no information at all so that the reason for their inclusion was unclear.

[10]The Respondent’s statement (by Mr Dhaliwal) was also unhelpful in that it asserted that Mr Dhaliwal had “decided that the Claimant was in a pool of one”. In fact, my “key conclusion” following the original hearing (as identified by the EAT and indeed the one which led to the remittal) was that “the … Claimant could reasonably have been placed in a pool of one had Mr Dhaliwal put his mind to it” (emphasis added). The clear implication of this was that I found Mr Dhaliwal had not put his mind to it and thus evidence was required to assist the Tribunal in piecing together what would have happened if he had. However, in the statement for this hearing, Mr Dhaliwal named only some of the other chefs in the kitchen (said to be “more senior” than the Claimant). He did not give any details as to their skills or experience, only the “stations” in which they worked. He too had almost entirely failed to cross-reference any of the pages in the 411- page bundle, save where he wanted to rely on my previous findings.

[11]As a consequence, the estimates given by the representatives for the length of cross-examination at the outset of the re-hearing (an hour for Mr Dhaliwal, half an hour for the Claimant) were understandably wildly out. I had to explain more than once, and to both parties, that I needed to assess the chances of what would have happened if the Respondent had followed a fair procedure. This hypothetical scenario appeared to cause both the Claimant and Mr Dhaliwal difficulties.

[12]Mr Dhaliwal gave evidence throughout the first morning and after the lunch break on the first day, including answering a number of questions from me. A great deal of what was put to him in cross-examination had not been addressed in either his or the Claimant’s witness statements but it was necessary for me to intervene to inform my speculation as to what would have happened in a fair procedure.

[13]The Claimant gave his evidence on the afternoon of the first day. He answered some supplemental questions in chief and was then cross-examined. Mr Dhaliwal had been released at the conclusion of his own evidence and had left the hearing but had to come back to hear the answers the Claimant was giving so that he could give Mr Stevens instructions. We sat until 17.20 so that the Claimant was not left part-heard overnight.

[14]At the end of the first day, I realised that some of the Claimant’s evidence had conflicted with his evidence on the previous occasion. I caused his original and supplementary witness statements from the January 2021 hearing (neither of which his Counsel had seen) to be sent to both representatives first thing on day two. The Claimant was not in attendance and we adjourned briefly so that his Counsel could try to make contact with him and take instructions. As he was unable to do so, we proceeded on the basis that the Claimant would not be recalled and we would deal with the evidential conflicts in submissions. The Claimant did then phone Mr Hoang-Brown when he was part-way through making those submissions, and we adjourned again for him to take the call, but the position as to recalling the Claimant was unchanged.

[15]We completed submissions just after midday on day two. I reserved my decision. Evidence and findings of fact The Respondent’s decision as to redundancies

[16]Mr Dhaliwal’s unchallenged evidence at the 2021 hearing was that Zaika closed in March 2020 in line with the requirements of the first national lockdown and did not reopen until 8 September 2020. While some restaurants operated a takeaway service during lockdowns, Zaika did not. The Claimant said at the rehearing that he had heard a rumour it had done so. He did not adduce any evidence to support this suggestion which I consider to be entirely speculative and I reject it.

[17]I previously found it to be relevant to the Respondent’s decision to make redundancies that even prior to the first lockdown, business had reduced significantly and that Mr Dhaliwal was not optimistic that diners would return quickly – or possibly at all – to pre-pandemic levels. Mr Dhaliwal confirmed in cross-examination at the rehearing that the situation was indeed both dire and unprecedented. It was not just a downturn as had been experienced previously, for example in 2008. The government was making changes to the rules around lockdown almost daily and it was difficult to keep up; this created uncertainty.

[18]However, Mr Dhaliwal also explained in cross-examination at the rehearing that his view was if London survived, the Respondent would survive, though likely not in the same way or to the same extent as before. I had also previously found that the fact he could not be sure the Respondent would require the same number of employees in future led to Mr Dhaliwal’s decision to carry out redundancies, notwithstanding the introduction of the CJRS and the possibility of placing staff on furlough.

[19]Mr Dhaliwal said at this rehearing that he reached the conclusion quite quickly in March 2020 that he had to cut payroll because the business had no money coming in. He believed that redundancies were the only way forward, and that he, as the owner of the business and the person who runs it day-to-day, was the appropriate decision-maker. He said he is closely involved with and has information about all the employees and how they had behaved over the last months or years. He was not making random decisions just because the business was closed; there was a lot of historic data governing his actions.

[20]He did not however think at that stage that the situation called for a restructuring of the business, which for him implied consideration of bankruptcy. Mr Dhaliwal acknowledged that there might have come a point when the decision had to be taken that the business was no longer viable and total closure would have been necessary, but in March and April 2020 that was not part of his thinking.

[21]He also refuted the suggestion put to him that other options, such as offering part-time working or asking staff to change roles in the kitchen, might have been viable. This was not a reduction in work for a finite period, it was a complete cessation of work for an indefinite period.

[22]I accept Mr Dhaliwal’s evidence as to his decision to make redundancies. Selection pool/criteria

[23]Mr Dhaliwal concedes, and I have so found, that the way in which he implemented that decision was not fair. He did not consult with the employees at all. The Respondent simply told seven “FOH” (front of house) employees, two managers and the Claimant that they were dismissed.

[24]At the rehearing it was not suggested on the Claimant’s behalf that he should have been pooled with all other staff, and my focus is therefore on the pooling (or lack thereof) among the chefs. However, in cross-examination it was put to Mr Dhaliwal that the situation generally warranted a collaborative approach with all staff to try to come as a collective to decisions in the best interests of the business. Mr Dhaliwal was dismissive of that suggestion. He said that employers need to make decisions and employees need to do their jobs. He considered that the best decision he could come up with at that time, given the circumstances – at least so far as the kitchen staff were concerned – was to make a “non-specialist chef” redundant, in addition to the other nine employees from outside the kitchen pool.

[25]The reason for making a “non-specialist chef” redundant, according to Mr Dhaliwal, was that the Respondent is a restaurant charging premium prices and it would be very risky in terms of maintaining the necessary quality to move people around in the kitchen. He acknowledged it can be done in certain circumstances, such as when the specialist chefs are on holiday or call in sick: then Mr Dhaliwal would request cover from a colleague. It would not, however, be realistic to require a non-specialist to become a specialist overnight. Mr Dhaliwal considered it would take five to ten years to become a specialist.

[26]For that reason, Mr Dhaliwal considered that the Claimant, who in Mr Dhaliwal’s eyes was the only non-specialist chef at Zaika, was the logical choice and would have been in a pool of one if he had thought about it. He agreed that if there had been more non-specialist chefs, they would have been pooled with the Claimant.

[27]Further, had the lockdown continued with no re-opening date in sight, it was fair to say that all the chefs might have been at risk; but in what Mr Dhaliwal called “Phase One”, he was content to focus on those who did not specialise – i.e. the Claimant - because he considered that the kitchen could still be run without them. His evidence was that if he had made the specialist chefs redundant, the business would not survive because it would not be able to reopen at the end of lockdown. As it was, when the restaurant did reopen, takings were down 70%. Mr Dhaliwal considered in such lean times, there would be no need for non-specialist “helpers”, whereas during busy times those employees are used in the kitchen for, among other jobs, preparing the mise en place.

[28]The evidence as to whether the Claimant was a specialist chef or a “helper” and whether he was able to replace any of his colleagues, was hotly contested and hence it was extremely disappointing that neither party had considered it in any detail in the witness statements. I have had to do my best with the evidence that was in the bundle, taken with the oral evidence. As far as I can make out, other than the Claimant, the kitchen staff and their various specialisms were as follows:a. Daniel Shekhar Rozario, the head chef and a specialist tandoor chef;

b. Somnath Mehra, a specialist tandoor chef (running the bread section of the tandoor station);

c. Gautam Barman, a specialist curry chef (running the station);

d. Alberto Poly Silva, a specialist pastry chef (running the station);

e. Seby (Bastiao) Travasso, a specialist in pantry (frying and cold section starters) (running the station);

f. Mahesh Rayar, a specialist curry chef;

g. Ashley Rodrigues, working in pantry;

h. Sagayaraj Gnnapraga, a specialist curry chef;

i. Paulwin Silva, working in pantry.

[29]Mr Dhaliwal’s focus was on those who did not contribute to the menu; he said that chefs who run stations also come up with new dishes and carry out trials. His view was that all the senior chefs at (a) – (e) above contributed to the menu but that the Claimant did not. Mr Dhaliwal said their salaries were in the region of £39,000 to £45,000 per annum, whereas the Claimant’s was, as I have found, £34,000 by the date of his dismissal.

[30]The Claimant did not challenge this while Mr Dhaliwal was giving his evidence, but when it came to the Claimant’s own evidence, he denied that anyone was receiving as much as Mr Dhaliwal had suggested. The Claimant said for example that Mr Barman had shown him his payslip and it showed Mr Barman was earning no more than £35,000, although the Claimant could not recall precisely how much it was for. That said, he then acknowledged that Mr Barman had the same arrangement as the Claimant himself in terms of having cash (presumably tronc) payments in addition to what was set out on his payslip. The Claimant also said he thought Mr Silva was earning only £26,000 to £27,000.

[31]I prefer the evidence of Mr Dhaliwal in this respect as is more likely to be aware of the salaries of each member of staff, even three years on from the period wit which we are concerned. There is no guarantee, even if Mr Silva told the Claimant what he was earning, that the figure he gave was accurate. The Claimant did not suggest he knew what the others earned, or that he definitely knew what anyone’s salary was.

[32]The Respondent’s evidence was that up to and including 2020, Mr Rozario always took his holiday from the beginning of January until mid-February each year so that he could visit family in India. Mr Dhaliwal said that the Respondent’s business was so completely different at its peak from non-peak, it was as though they were two different restaurants. Mr Rozario habitually worked six days a week, other than during his six weeks holiday, working in and heading the meat section of the tandoor station as well as running the kitchen. When he was away, which was always during the “off peak” period, Mr Silva and Mr Rodrigues ran the kitchen in terms of the rotas, ordering etc. They were both off themselves two days a week but the kitchen was open seven days, so they had to split the work between them.

[33]Both Mr Rozario and Mr Mehra were involved in marinating the meat in the tandoor station. Mr Dhaliwal said this was a very lengthy process, taking up to two days for different marination processes. The Claimant was never part of that process. At the time, Mr Dhaliwal said that Mr Mehra did (and still does) the butchery in the restaurant. Both he and Mr Rozario were able to do it but Mr Mehra did the most. If he was going to take a day off, he would butcher enough meat for two days, so that the “helper” would have it ready for them while Mr Mehra was on leave. It would not have been possible for Mr Rozario to have done all the butchery as well as running the kitchen, if Mr Mehra had been made redundant. Again, none of this evidence was challenged while Mr Dhaliwal was on oath.

[34]Mr Rozario himself left the Respondent sometime after Zaika re-opened but the Respondent has replaced him “like for like” i.e. a head chef who works in the tandoor section. This new person does not have extended holidays abroad and so the restaurant can work around him, with one person managing both meat and bread in the tandoor section during slow periods such as on bank holidays when there may be as few as 30 or 40 guests in the restaurant. There is no occasion when the new head chef and Mr Mehra are both off at the same time.

[35]Mr Dhaliwal acknowledged in cross-examination that in the years before COVID, when Mr Rozario went to India every January, there would be days when Mr Mehra was also off. He claimed that a tandoor specialist from another restaurant in the Tamarind Collection would come to Zeika. He said that that person did not appear on the Respondent’s rosters for the period because their shifts would be marked on the roster for their usual restaurant. He denied that the Claimant ran the tandoor section.

[36]So far as the curry section was concerned, Mr Dhaliwal considers Mr Barman an extremely good curry specialist, who he says has spent 12 years working in a top hotel. Mr Dhaliwal denied that if Mr Barman was made redundant, the remaining two chefs could manage the station between them. He said that he would love to be able to run the section with two chefs as his payroll would be lower, but the reality is that the section would be in trouble if it lost Mr Barman. The Claimant could not have replaced any of the three chefs in that section on a full-time basis, though he could help out if one of them was off sick or on holiday, and during “down” times, not peak hours.

[37]On being pressed in cross-examination, Mr Dhaliwal conceded that there might have been occasions when there was only one curry chef on shift, but he said that a kitchen could not be run permanently with only one and that in any case, the Claimant did not assist in the curry section. In a perfect world, Mr Dhaliwal said, there would be two specialist curry chefs on any given shift and if the restaurant was busy, even that would still be a struggle. The biryani oven was further away and curries needed to be co-ordinated, so preferably there would be three.

[38]Turning to pastry, Mr Dhaliwal said Mr Poly Silva was the only person in his section and thus if he was made redundant, the section would close and there would be no desserts in the restaurant. He agreed that many other people could “dispense” desserts in terms of coming in during the evening service, plating them up and sending them to the tables, but only Mr Poly Silva could prepare them. The desserts section was not in the main kitchen, so Mr Poly Silva could not help out in there if another section chef was absent. Mr Dhaliwal denied that the Claimant had trained Mr Poly Silva.

[39]Mr Travasso’s role was said by Mr Dhaliwal to be “critical”, co-ordinating the dishes going out. Indeed, he said all three pantry chefs had a heavy workload plating and dispensing the food and all three were critical to the pantry section running effectively. Dispensing from this section is different because the person doing it co-ordinates the food for every table (up to 220 covers on a busy Friday or Saturday), and must have knowledge of gluten and other allergies. Mr Silva does the preparation for the pantry in the morning and in the evening, dispenses cold starters on the counter. He works five days a week and Mr Rodrigues does it on his days off. Mr Dhaliwal denied also that the Claimant had trained Mr Rodrigues.

[40]It was put to Mr Dhaliwal in cross-examination that if he had consulted with the chefs, there may have been those who were willing or hoping to take redundancy or who did not want to return to work for health and safety reasons while COVID remained a risk. Mr Dhaliwal refuted this. The only person, he said, who did not return when Zaika re-opened, was a sommelier. Everyone who had worked in the kitchen returned, save, obviously, for the Claimant.

[41]Mr Dhaliwal’s analysis of each of the other kitchen staff was largely unchallenged by the Claimant. The Claimant’s skills and experience

[42]So far as the Claimant himself was concerned, Mr Dhaliwal said he was employed by the head chef as a tandoor chef but he then became a “helper” who rotated around all four sections. The Claimant does not accept this, but although this was what Mr Dhaliwal had said at the 2021 hearing, the Claimant had carried out no analysis in his witness statement of his colleagues’ skills or experience, nor given any detailed evidence about his own ability to replace any of them. He accepted in cross-examination that he was aware the purpose of the rehearing was to establish what skills he had in the kitchen. There was no explanation for why, in those circumstances, he had not addressed them in his statement.

[43]To the extent he dealt with these issues at all, the Claimant had asserted broadly in the statement for the rehearing that he was the only chef capable of handling all the sections and was more skilled than the other chefs employed. His position was that he could easily have transitioned to work on one of the “other” sections (presumably, “other” than the tandoor section) and would happily have done so. He said that if he had been asked for his views during a consultation period, he would have asked the Respondent to make either Mr Travasso or Mr Silva redundant and he would have taken their place in the pantry.

[44]In oral evidence, the Claimant said that prior joining the Respondent in 2015, he had worked at the Holiday Inn in India for more than five years and then he had worked as the Head Chef (tandoor) at a restaurant called Copper Chimney in the USA for around six years. While he was working in India, he was a waiter initially then a trainee chef. On coming to the UK he had worked in Masala Zone in Earls Court before joining the Respondent, which he acknowledged was better regarded than Masala Zone. There was no supporting evidence I the bundle of the Claimant’s experience and although he said it was all on his CV, that was not in the bundle either.

[45]The Claimant said that he worked as a tandoor chef when he started with the Respondent in 2015, then he was “promoted” to the pantry section before moving to the curry section, with curry and pantry helping each other. When the pastry chef left, the Claimant moved on to pastry. He said there was nobody else with him when he was working in pantry and curry initially, but this did lead to many complaints from customers, presumably about food quality. The Respondent grew fast, from 30 to 40 covers up to between 200 and 300 by the time of the lockdown in 2020.

[46]The Claimant expressed himself confident in oral evidence that he could have replaced any of the curry chefs (though as I set out below, he did not suggest that he should have done so) or either of Mr Rodrigues or Mr Silva. He believed he had more knowledge and was more senior to those in all the sections.

[47]The Claimant initially denied that when Mr Rozario was away, the Respondent called on a tandoor chef from another restaurant in the Tamarind Collection but then accepted that a curry chef called Sagay or Sagayaraj did sometimes come from elsewhere in Tamarind to work at Zaika. This may have been Mr Gnnapraga, who does appear on the rosters from January to March 2020 as working at Zaika, although he remained on them after 14 February when Mr Rozario had returned from holiday and was himself rostered, so I make no definite finding. It was the Claimant’s case in any event that this occasional chef came when there were parties at Zaika, and that he was not coming to substitute for Mr Rozario.

[48]The Claimant also asserted in cross-examination that he did butchery for the Respondent, notwithstanding this was not referred to in his witness statement and nor did he mention it when answering supplemental questions in chief. He initially said the meat for the restaurant came from outside prepared so all that was required was cutting up chicken; he then agreed however that this was not correct and that the meat had to be coated and marinated. He said that the length of the marinade was not as long as Mr Dhaliwal had suggested and that the meat would be marinated only for between one and three hours, the length depending on how busy the kitchen was. He then accepted that this was not correct and that the kitchen knows how much meat it requires and marinates it a day in advance.

[49]The Claimant had not challenged Mr Dhaliwal while he was giving evidence about these matters, and I find that Mr Dhaliwal’s evidence was cogent and plausible. The Claimant’s evidence by contrast was inconsistent and lacking credibility. It makes little sense that what is on the menu for the day (or the quality of the food) in a high-end restaurant can be dictated substantially or at all by how busy the restaurant was the day before.

[50]The Claimant also acknowledged that if a chef had the skills to run multiple different sections (pantry, tandoor and curry) they would be very sought-after and could command a high salary in well-regarded restaurants. Indeed, he agreed with Mr Stevens’ suggestion that they could get a job at any threeMichelin starred restaurant in the country earning six figures. He maintained nonetheless that he was such a chef.

[51]The Claimant sought to support this by saying that when he was offered a job at a competitor restaurant, Chokhi Dhani, in May 2018, Mr Dhaliwal told him he was a good chef, second to Mr Rozario, and asked him to stay. The Claimant said he had not asked the Respondent for a pay rise. He claimed he had been enjoying his work with the Respondent but resigned because he had been offered a good opportunity and said that he was joining Chokhi Dhani as a curry chef. He said he told Mr Dhaliwal he needed Sundays off because he had a young child at home and repeated that he had not asked for a pay rise. Nonetheless, he said, the Respondent subsequently increased his pay.

[52]This was the aspect of the evidence on which I asked the representatives to address me, early on the second day. In the supplemental statement produced by the Claimant on the second day of the 2021 hearing, he had said that he had no desire to leave the Respondent but could not turn down a pay rise of £2,000 per annum so he approached Mr Dhaliwal to hand in his notice. Although he did not want to leave, the additional money would be invaluable to his family and “on that basis alone” he said he had to accept the position he was being offered. Mr Dhaliwal matched the salary, so the Claimant remained with the Respondent. Then in May 2019, the Claimant had felt he was “still being underpaid for [his] skillset” and asked for a further meeting with Mr Dhaliwal and Mr Rozario. He asked for, and was given, a further pay rise.

[53]I accordingly made findings to that effect in the previous decision and they were what underpinned my conclusions as to the higher salary rate as advanced by the Claimant. Mr Dhaliwal’s evidence matched the Claimant’s and indeed he gave evidence in 2021 that he had felt pressured by the Claimant into increasing the Claimant’s pay, because on both occasions, the Claimant had waited until the Respondent was short-staffed to ask for the rise, threatening to leave if he did not get it. Mr Dhaliwal gave this as a factor as to why he considered the Claimant less reliable.

[54]As I have said above, neither of the representatives at the rehearing had been at the first hearing and they had not seen the statement in which the Claimant had set out the circumstances of his offer from Chokhi Dhani and the matching of that offer by the Respondent so that he stayed at Zaika. No fault attaches to them in not addressing the issue in evidence. In the circumstances, however, I reject the Claimant’s version of events in this regard and accept the evidence of Mr Dhaliwal. Conclusions Polkey reduction

[55]I conclude that a fair procedure would have involved consultation with the affected employees, as is now acknowledged by the Respondent.

[56]I reject the submission that a fair procedure would necessarily have had to involve putting all staff at risk of redundancy into a single large pool. At the date of the Claimant’s dismissal, it is correct to say that the situation was dire and the future of the business uncertain. Mr Dhaliwal had already seen revenues dropping pre-COVID and was fairly sure that there would not be an immediate return to “business as usual” once lockdown restrictions were lifted, but he believed it would pick up. I find that he must have made a decision to make redundancies at some point between 17 March and 1 April 2020, the latter being the date the employees concerned were told they were being dismissed. It was from that date, therefore, that consultation should have started, i.e. prior to any decision crystallising.

[57]To some extent, the Respondent was in a better position than it had been after the financial crash in 2008, because in 2020, it had the CJRS to fall back on in the immediate future and there had been nothing like that in place in the earlier period. However, Mr Dhaliwal had already given thought to what the position might be after the restaurant re-opened, before COVID restrictions were imposed and the CJRS came into being. At that stage, he believed he was looking at a diminution in business and not a cessation (to use the language of the statute) or as Mr Dhaliwal himself put it, “Phase One”. Nonetheless, I consider that there was nothing that would have dissuaded him from the decision that some redundancies were required.

[58]That being so, I conclude that it would have been inevitable that the Respondent would have differentiated between FOH employees and chefs, and I conclude that this would have been a reasonable approach to take; they are not interchangeable in the roles they do. The latter are trained, skilled and experienced in cooking, the former are not. Chefs are paid higher wages, and by reference to an annual salary rather than an hourly rate, because they are likely to be much harder to replace. A restaurant cannot operate without chefs, whereas it could have run a takeaway service (for example) with no FOH staff at all. Fewer FOH employees would be required if (as it turned out was the case) there continued to be restrictions on diner numbers following lockdown, and waiters were on zero hours contracts so that when they were not working, they were not being paid; it therefore cost the Respondent much less to keep them on even allowing for accrual of holiday pay for instance and even before taking into account the CJRS.

[59]As such, it would not have been realistic (and indeed was not suggested for the Claimant) that he could/should have “bumped” out a member of FOH staff. Even if there had been consultation across the entire workforce, as there should have been, I conclude it would have taken place in different pools, and the Claimant would have been in the pool of kitchen staff, not a single pool of all staff at Zaika. That was the pool that I conclude would have been dealt with first (if they were done sequentially), given the higher fixed salary rates among the staff in it.

[60]I further find that within a pool of kitchen staff, it would have been potentially reasonable for the Respondent to differentiate between “speciality” and “nonspeciality” chefs. Had the Respondent done so, I conclude that the factors indicated in Mr Dhaliwal’s statement (seniority, ability to run a section, performance, punctuality and loyalty) would have been included in a matrix that would have been drawn up by Mr Dhaliwal himself. In particular, the latter – loyalty – clearly weighed very heavily in the analysis of the Claimant that Mr Dhaliwal did conduct, despite not having articulated it at the time and not having discussed it with anyone, including the Claimant, when he did so. So though he did not score anyone else, he formed a mental picture of the Claimant that led him to say it should be the Claimant who was dismissed for redundancy, and those factors form the basis of what I conclude a matrix would have contained.

[61]I am not persuaded that the line between the Claimant and the other chefs was as clearly defined as Mr Dhaliwal seeks to suggest. It is clear from the rota for instance that there were several days in January and February 2020 when Mr Rozario was on leave where Mr Barman was also off. On 16 January 2020 for instance (a Thursday), there were only six chefs on the roster: Mr Rayar, Mr Rodrigues, Mr Gnnapraga, Mr Travasso and Mr Silva, plus the Claimant. That would mean two curry chefs and three in the pantry. Taking into account Mr Dhaliwal’s evidence that Mr Mehra would have prepared the meat and Mr Poly Silva the desserts the previous day, there would still have had to be someone on tandoor that night, cooking. Even if the restaurant was low on covers because it was a January night in the middle of the week (fears about COVID not yet being a factor), and even if somebody came from Tamarind to help out in and/or to run the tandoor section because Mr Rozario was on holiday, that meant the Claimant must have run at least the bread section in tandoor.

[62]Further, the job that the Claimant secured in December 2020 with Dishoom as a Senior Chef de Partie paid just £2,000 a year less than he was earning with the Respondent at dismissal. I conclude that that is therefore likely to be a similar level at which the Claimant was working when he was at the Respondent – i.e. more than a “commis chef” or “helper” as Mr Dhaliwal now suggests.

[63]That said, I do not accept that the Claimant’s skills were of the level claimed by the Claimant. His evidence as to the butchery and marinating of meat for instance was inconsistent and wholly lacked credibility. I accept the Respondent’s submission that the Claimant gave a very poor account of himself in his evidence, sometimes contradicting his own oral evidence within minutes, and as I have said, he had scarcely engaged in his written statement with the purpose of or issues in this rehearing.

[64]It is also very notable that the Claimant’s applications for employment since leaving the Respondent have not been to work as a head chef in Michelin starred restaurants (or even for the sort of roles that the Respondent had found advertised on the Indeed website in January 2021, such as Group Executive Chef in West Drayton paying £40,000 a year) as might be expected if his skills and experience were at the levels he claims. Instead, he spent three hours in August 2020 (including a two-hour interview) applying unsuccessfully for an unspecified role at the “Kingsfield Arms” which I infer is a pub, and made a single, similarly unsuccessful, application for a job as an “Indian chef” in an unspecified venue later that month via Indeed.

[65]I conclude that if the Respondent had carried out a consultation, it would have informed the entire restaurant workforce of the proposals to carry out redundancies in the different pools (of which there would probably have been three: FOH, kitchen and management) and advised the employees of the criteria that it proposed to use. As I have said above, I consider this notification would have come at some point before 1 April 2020 once Mr Dhaliwal had reached the decision that redundancies were necessary. It was not suggested that the Respondent might have offered a voluntary redundancy package (enhanced or otherwise), but given the fact that everyone returned after the restrictions were lifted, I consider it very unlikely that any of the chefs would have taken it if the Respondent had.

[66]Notification would have to have been done by email or by a remote “town hall” meeting (Zoom or similar) because of the lockdown restrictions on meetings in person, and that could have been carried out very quickly – within one or two days - after the decision was made, because at the time, employees were almost by definition a “captive audience”. On balance of probabilities I consider the Respondent would have used email because that is how it notified the employees of the proposal to place them on furlough.

[67]Mr Dhaliwal would then have drawn up the criteria he was proposing to use and assessed each of the kitchen staff against them before informing each of them of his assessment. I conclude that the Respondent would have excluded the Head Chef from the pool, regardless of any other considerations, given his unique role and pivotal importance to the kitchen. I have previously found that it was Mr Rozario who made the phone calls explaining to the Claimant and to Mr Da Silva that their employment was being terminated, so, Mr Dhaliwal might well have chosen to discuss with Mr Rozario the structure of the pool, the criteria and the individual scores. This discussion might perhaps have been over two to three days, though it might well have been shorter since again Mr Rozario would inevitably not have had other work commitments to distract him and so would have been available throughout the day.

[68]Assuming that any such discussion or consideration by Mr Dhaliwal did not result in each of the section heads also being excluded from the pool (which I consider would not have been unfair if it had), there would then have had to be a maximum total of nine individual consultation meetings. Again, those meetings would have had to be conducted remotely, with the information emailed to the participants in advance.

[69]I conclude that the criteria (to which I return below) could be drawn up and the kitchen staff scored against a matrix within the first week from the Respondent notifying them they were at risk, and then assuming that the Respondent would conduct a fairly modest three meetings a day, I consider that the entire process would have been concluded within two weeks.

[70]Although I do not accept that a fear of demoralising the kitchen staff should necessarily have prevented the Respondent from conducting a consultation exercise or putting everyone at risk, I consider it highly unlikely in the circumstances that the process would have been protracted. Given the size and resources of the Respondent, a two-week period to complete an exercise involving one redundancy from a pool of nine would not be objectively unreasonable.

[71]I conclude that the Claimant has not shown on balance of probabilities that he has the skills and experience necessary to replace any of the chefs who are normally allocated to the Respondent’s different kitchen sections, but more to the point, I conclude that he would not have persuaded Mr Dhaliwal that he did. Mr Dhaliwal’s discussion with the Claimant about the scoring would therefore undoubtedly not, on the evidence before me, have led to any meeting of minds, and ultimately, I conclude that the Claimant would have been unable to persuade the Respondent that there should be no redundancy at all or that he should be retained in the place of any of his kitchen colleagues.

[72]I have set out above the reasons why Mr Dhaliwal had reached the conclusion that a redundancy was necessary from the kitchen staff, in addition to those being made elsewhere. Those reasons are not objectively unreasonable and Mr Dhaliwal clearly considered it was his decision to make. He has also explained that he viewed the Claimant as:a. Less senior to the colleagues that ran stations. There was no agreement between the parties on the point and it is difficult to assess, absent any reliable supporting evidence, whether that was a fair analysis, but the Claimant did not challenge Mr Dhaliwal’s evidence on the previous occasion that the other chefs had up to twelve or thirteen years’ service with the Respondent;

b. Unable to run the curry section two days a week. I consider that this ties in to the “loyalty” factor, below, but it would also have meant the Claimant “bumping” one of his colleagues who were allocated specifically to that section (i.e. Mr Barman, Mr Rayar or Mr Gnnapraga) and the Claimant did not himself suggest that this would be appropriate;

c. An underperformer compared to the rest of the kitchen staff. There was no supporting evidence of this and Mr Dhaliwal appeared to accept in crossexamination that what he meant was that the Claimant was not punctual and disloyal, both of which are factors considered separately, so that underperformance should have been discounted entirely;

d. Not punctual. I found in my previous determination that the Claimant had appeared to accept he was occasionally late for work, and he repeated that in the rehearing. There was no reliable evidence that his colleagues were late as frequently or by as much as the Claimant.

e. Lacking in loyalty. I have grouped Mr Dhaliwal’s final two factors (the Claimant was “always asking for pay rises, especially when other kitchen staff was on holiday [sic]” and “he had already once resigned to join Chokhi Dhani”) under this head. I have found that the Claimant has not been truthful at this rehearing in his evidence and that Mr Dhaliwal’s assessment of the situation is accurate.

[73]It would not have been unreasonable, given what might fairly have been described as a potentially existential threat to the Respondent, for Mr Dhaliwal to have weighted these elements, with “loyalty” as the main one. I conclude he reasonably wanted to ensure that when he re-opened at some unknown point in the future, he would have a core of reliable staff who could have the kitchen up and running quickly, and taking that into account, it was his view that he could not depend on the Claimant to achieve it as much as he could rely on the other chefs. Therefore, even if the Claimant had scored as much or slightly more than his colleagues on all the other factors, it was clear that the two elements of the “loyalty” factor would have been determinative in Mr Dhaliwal’s scoring of the Claimant and would have been objectively both reasonable and accurate.

[74]This is not the same thing as the Respondent “getting rid of an unwanted employee”. As I found in my previous decision, had there been no global pandemic, the Claimant might never have been dismissed. His punctuality was not sufficiently poor even to warrant a formal warning. When he had announced his intention to leave and join a competitor, or had asked for a pay rise in the past, the Respondent had not simply accepted his resignation or refused his requests as it could have done if it wanted him out; instead it met his requests for an increase in salary and so he stayed. However, once the decision was made that a redundancy from among the kitchen staff was necessary, some consideration had to be used to differentiate between the chefs.

[75]The Respondent would have acted in an objectively reasonable fashion if it had used the factors (other than 72(c)) above, and weighting (e) as the determinative factor if necessary. It was not suggested on the Claimant’s behalf that any of his colleagues would have scored lower than the Claimant in that regard or indeed overall. Whether or not the Claimant was capable of running the stations is probably beside the point; as a matter of fact he was not running any of them, and the Respondent was entitled to conclude that it would not upset the status quo by dismissing a specialist senior chef who was already in place and replacing him with the Claimant.

[76]I do not accept that the Claimant would have taken unpaid leave or even that he would have suggested he might. As I found previously, the day after the Claimant was given notice, he said he did not accept it because he wanted to support his family and “pay rent” as to which an option of unpaid leave (and no redundancy payment) would simply not work. Even had he done so, I consider that Mr Dhaliwal would have refused this option because he had seen revenue falling before lockdown and he was – as it turned out, rightly – concerned that it would not pick up quickly after restrictions ended; therefore he had resolved that reducing the size of the workforce was the correct and only way to proceed.

[77]Mr Dhaliwal said previously, and I found accordingly in my previous decision, that giving notice early would maximise the chances for the Respondent’s employees to look around for alternative employment while remaining on paid furlough leave; and indeed that is identified in Williams & Others v Compair Maxam1 as being one of the two potential reasons for giving a warning to employees who are at risk of being dismissed for redundancy, the other being to ensure there is effective consultation, including about the possibility of alternative work with the employer. However, in this instance, there was no “alternative employment” that might have been available to the Claimant at that time and working part time was not an option open to anyone while the 1

[1982] ICR 156

restaurant was closed indefinitely. It was also not feasible to make any other adjustment to the way the kitchen worked, given that it was not working at all.

[78]In the circumstances:a. There is 100% likelihood that the Claimant would have been dismissed in any event, had the Respondent followed a fair procedure.

b. The Claimant is entitled to compensation for the time it would have taken to follow that procedure, which in my assessment is a period of two weeks.

c. Accordingly I do not need to go on to consider whether the Respondent has shown that the Claimant has failed to mitigate his losses.

Remedy

[79]I assess the amount payable as follows:a. I have previously found that the Claimant’s gross annual salary was £34,000, or £652.06 per week (365/7 = 52.143 weeks. 34,000/52.143 = 652.0547).

b. Although the Claimant continued to be paid by the Respondent, albeit at a reduced rate, for three months following his effective date of termination, I have already offset those payments against what was owed to him by way of deductions from wages, notice and redundancy pay and therefore no deduction falls to be made from the award.

c. The Respondent is accordingly ordered to pay to the Claimant two weeks’ pay, which is the gross sum of £1,304.11. This judgment may be satisfied by the Respondent paying to the Claimant what it calculates to be the net sum due and accounting to HMRC for tax and national insurance on the balance. Furthermore, if the Claimant believes that too much has been deducted (e.g. because his liability for tax and national insurance should be based on his current circumstances as opposed to those in 2020) he can apply to the Revenue for a refund.