Mr K Abayomi v CL1 Realisations Ltd (formerly Cazoo Ltd) In administration and The Secretary of State for Business, Energy and Industrial Strategy: 2214115/2023 Mr K Abayomi v CL1 Realisations Ltd (formerly Cazoo Ltd) In administration and The Secretary of State for Business, Energy and Industrial Strategy: 2214115/2023
EMPLOYMENT TRIBUNALS
Case No 2214115/2023
Between
Mr K AbayomiClaimant(1) CL1 Realisations Limited (formerly Cazoo Limited) In administration (2) The Secretary of State for Business, Energy and Industrial StrategyRespondent
Before
Employment Judge Smart in publicHimself for claimantNot represented for respondentDate 16 October 2025
JUDGMENT
[1]The Claimant’s claims for breach of contract are not well founded and are dismissed.[2]The Claimant’s claim for unpaid wages succeeds and he is awarded £192 gross.[3]The Claimant’s claim for unpaid holiday pay is not well founded and is dismissed. 1 of 18 Sept 2023 PRELIMINARY ISSUES The state of the electronic case file[4]This was a transferred case from London Central Employment Tribunal.[5]Unfortunately, as the case went on, it was obvious that there were some documents missing from the Tribunal file such as certain emails to and from the Tribunal and the Claimant.[6]The Claimant therefore needed to send some of those documents to the Tribunal during the hearing and I needed to ask the administrative team to update the case file with any missing correspondence.[7]With the combination of the above, I am content that I had all material documents before me from the tribunal file, before I made any decisions about the applications made. The hearing[8]The hearing was originally listed for three hours. However, it took a full day’s sitting.[9]Towards the end of the hearing, I was hopeful that I could give oral judgment.[10]However, before breaking for deliberations, the Claimant stated he wanted written reasons for everything including those issues that I had determined in his favour and the Judgment that I had not yet provided.[11]During deliberations, I had not finalised my thoughts about the effect of the misrepresentation point the Claimant had made, and I wanted to make absolutely sure that there was nothing missing from the tribunal file that the Claimant had already sent to the Tribunal as evidence.[12]I therefore reserved judgment. The Claimant was clearly not happy with that when I made that decision, but it was best in my view.[13]I explained to the Claimant at the hearing that I would try to get the judgment to him as soon as possible, but with other work and sittings this may take up to 12 weeks to complete. Relief from sanction application[14]By the start of the hearing, the Claimant had made a number of applications.[15]The first was to have relief from sanctions for the dismissal of his holiday pay claim following an apparent failure by the Claimant to complied with an unless order made by Hodgson EJ on 27 October 2024.[16]The order said: “Unless order 2 of 18 Sept 2023 3.2 Unless, on or before 16:00, 19 November 2024, the claimant provides in writing the information requested below, the claim of failure to pay holiday whether pursuant to regulation 14 Working Time Regulations 1998 or as a breach of contract claim will be dismissed without further warning order. The claimant should state:3.2.1 the appropriate holiday year;3.2.2 the holiday due under the Working Time Regulations 1998 during that year;3.2.3 the period of holiday (to include the dates of the holiday) actually taken in that holiday year;3.2.4 the dates of all bank holidays taken;3.2.5 and the balance which it is said was owed at the date of dismissal, if any.”[17]Both Glennie EJ and Smith B EJ had confirmed that the unless order had taken effect after a failure to comply. However, I am sure that had those Judges had before them the correspondence I had seen dated 5 November 2024, they may not have made those decisions. There was no evidence this information had been before them at the time they made these decisions.[18]I heard submissions from the Claimant that he had attempted to comply with the order.[19]The Claimant says that he provided his witness statement the contract of employment and other documents in a bundle by email on 5 November 2024.[20]The contract of employment provided the information in 3.2.1 and 3.2.2.[21]The Claimant’s witness statement was part of that bundle and that contained information that complied with paragraphs 3.2.3 and 3.2.5.[22]The information did not address 3.2.4.[23]There was therefore partial compliance, but what had been complied with was done within the time limit in the unless order.[24]Having reviewed everything, I considered the relevant principles in the following cases, all of which taken together sum up the correct approach to relief from sanction regarding unless orders: Thind v Salveson Logistics Limited UKEAT/0487/09/DA Minnoch and others v Interserve FM Limited [2023] EAT 35 Wakeman v Boys and Maughan Solicitors and another [2024] EAT 39 Sivanandan v Independent office for Police Conduct and another [2025] EAT 3 of 18 Sept 2023[25]For this application we were at stage 3 of Minnoch. Taking those tests into account, I was not persuaded the default at 3.2.4 of the unless order was deliberate. The Claimant had striven to comply. The default was not serious at all and, given his employment was for a few days in June, there were no relevant bank holidays in the period of his employment namely 15 June 2023 – 27 June 2023.[26]Additionally, neither respondent was present at the hearing and no prejudice could be identified to them in allowing the holiday pay clam to continue other than having to defend the claim.[27]We were at trial; there was the Claimant’s witness statement about annual leave and holiday pay as well as the contract of employment and relevant pay slips. A fair trial was still therefore possible. The Respondents chose not to attend.[28]Taking everything into account, it furthered the overriding objective and was in the interests of justice to set aside the unless order and allow the holiday pay clam to continue. Application for a judgment under rule 21 now rule 22 in the Employment Tribunal Rules of Procedure 2024[29]The Claimant presented his claim to the tribunal on 25 August 2023.[30]The Claim was accepted and the First Respondent was given until 23 October 2023 to submit a response.[31]The First Respondent submitted a response in time on 23 October 2023. That response was accepted by the Tribunal.[32]The Response contested the claim.[33]However, by 24 October 2023, the Claimant had not received any notification that the response had been submitted by the respondent. He therefore applied for a “default judgment” under then rule 21 of the tribunal rules.[34]Rule 21 stated under the rules in force in 2023: “Effect of non-presentation or rejection of response, or case not contested 21.—(1) Where on the expiry of the time limit in rule 16 no response has been presented, or any response received has been rejected and no application for a reconsideration is outstanding, or where the respondent has stated that no part of the claim is contested, paragraphs (2) and (3) shall apply. (2) An Employment Judge shall decide whether on the available material (which may include further information which the parties are required by a Judge to provide), a determination can properly be made of the claim, or part of it. To the extent that a determination can be made, the Judge shall issue a judgment accordingly. Otherwise, a hearing shall be fixed before a Judge alone. Where a Judge has directed that a preliminary issue requires to be determined at a 4 of 18 Sept 2023 hearing, a judgment may be issued by a Judge under this rule after that issue has been determined without a further hearing. (3) The respondent shall be entitled to notice of any hearings and decisions of the Tribunal but, unless and until an extension of time is granted, shall only be entitled to participate in any hearing to the extent permitted by the Judge.”[35]Clearly, because a response had been presented by the respondent and accepted, Rule 21 did not apply.[36]By the time the case came before me, the rules had been amended and updated and a similar rule now appeared at rule 22 of the 2024 rules. This says: “Effect of non-presentation or rejection of response, or case not contested 22.—(1) This rule applies where— (a)the Tribunal has not received a response by the time specified in rule 17(1) (response), or by an extension of time granted under rule 21 (applications for extension of time for presenting response), (b)any response received has been rejected and no application for a reconsideration is yet to be determined, or (c)the respondent has stated that no part of the claim is contested. (2) The Tribunal must decide whether on the available material (which may include any further information which the parties are required by the Tribunal to provide), a determination can properly be made of the claim, or part of it. To the extent that a determination can be made, the Tribunal must issue a judgment accordingly, otherwise, a hearing must be fixed. Where the Tribunal has directed that a preliminary issue should be determined at a hearing, a judgment may be issued by the Tribunal under this rule after that issue has been determined without a further hearing. (3) The Tribunal must provide the respondent with notice of any hearing or decision of the Tribunal but the respondent may only participate in any hearing on that claim to the extent permitted by the Tribunal.”[37]In my view, there is no material difference in the operation of the old rule and the new rule.[38]Clearly, in any case, neither applied to the Claimant’s claim.[39]On 18 June 2024, the First Respondent’s solicitors had been requested to come off record because the First Respondent had gone into administration.[40]On 19 July 2024, as noted by Hodgson EJ in his case management order of 27 October 2024, the administrators allowed the claim to continue. 5 of 18 Sept 2023[41]The administrators stated they would continue with the First Respondent’s defence and would not be submitting a separate one.[42]Lewis EJ, declined to make an order on the following dates, despite repeated attempts by the Claimant to argue an order should be made: 12 August 202422 August 202429 August 2024[43]Glennie EJ declined the Rule 21/22 application again on 6 February 2025. This was because there was a question of jurisdiction still outstanding for unfair dismissal and the complaint as a whole still needed to be clarified and determined.[44]After the Claimant withdrew the unfair dismissal compliant, Glennie EJ, then considered whether a rule 22 Judgment should be issued. He confirmed in a letter dated 13 February 2025 that it was not suitable for a rule 22 judgment.[45]This was therefore determination number five of the Claimant’s rule 21/22 application by two separate judges.[46]The Claimant applied again in an email of 13 February 2025 for a rule 21/22 judgment.[47]On 18 February 2025, Glennie EJ refused to grant a rule 22 judgment again and confirmed the holiday pay claim stood dismissed because of Hodgson EJ’s unless order.[48]The Claimant emailed the tribunal again on 19 February 2025 requesting a rule 22 judgment. Smith B EJ refused that order. This was determination number 7 of the rule 22 application.[49]Further correspondence ensued in February and March 2025, where the Claimant demanded the case by moved to another region from Central London to Midlands West. He essentially refused to engage with the tribunal because of the repeated refusals to grant him the orders he wanted.[50]During that correspondence, Freer REJ again refused to consider the request for a rule 22 judgment.[51]Surprisingly, rather than simply take the case to hearing, the application for a transfer to Midlands West Tribunal was granted on 9 April 2025.[52]Then the matter came before me at trial. There was further correspondence along a similar vein, but I need not refer to it.[53]I considered the case of Goldman Sachs Services limited v Montali [2002] UKEAT 1203/01/1910.[54]There had been no material change of circumstances since the other applications were refused. I could identify no exceptional circumstances either. I could not, therefore, go behind the refusals earlier in the case, in particular of Freer REJ and Glennie EJ made after the unfair dismissal claim was withdrawn. 6 of 18 Sept 2023[55]In my view, because this was a contested claim, Rule 22 could never have been invoked.[56]I also considered the application in the light of the decision now made to reinstate the holiday pay claim. I came to the same result. Rule 22 could never have been invoked because there was an ET3 submitted in time and it contested the claim. The administrators relied on that defence.[57]In any case, how the Claimant could be entitled to the money he claimed, circa £25000, when he worked for the First Respondent for just 12 days would need some explanation, evidence and legal foundation, which could only be determined at a hearing.[58]Consequently, the Rule 22 application was refused. Withdrawal of the unfair dismissal claim[59]The only claim that could not be pursued at that time was the Claimant’s claim for unfair dismissal, because he did not have the requisite 2 years continuous service to bring it and did not fall into any exception.[60]On 7 February 2025, the Claimant withdrew his unfair dismissal complaint by email.[61]On 13 February 2025, the Claimant repeated his request to withdraw the unfair dismissal complaint.[62]On 18 February 2025, a judgment dismissing the unfair dismissal claim was issued by Glennie EJ and sent to the parties the same day.[63]The Claimant applied to reinstate the unfair dismissal complaint in numerous emails in March 2025. He said: “I only withdrew unfair constructive dismissal to make this easier and straightforward to achieve judgement for reminder of my claims and Judge Glennie agreed and suggested that. If that is not the case, then I must apply to reinstate that because seemingly I am no closer to achieving judgements and judge Glennie made it seem that withdrawing this complicated claim would allow other claims to given judgement 21 22 in his last correspondence to me.”[64]Before a litigant in person is to be treated as withdrawing their claim, the tribunal must satisfy itself that the withdrawal or concession of any point is clear, unambiguous and unequivocal before accepting the withdrawal Segor v Goodrich Actuation Systems Limited [2012] UKEAT/0145/11/DM.[65]A Tribunal also has no power to reinstate a properly withdrawn claim following Khan v Heywood and Middleton Primary Care Trust [2006] EWCA Civ 1087.[66]A claim can only be withdrawn if it was properly made in a pleading or by accepted amendment to a pleading. Consequently, a claim can only be dismissed if it has been withdrawn. Therefore, if a claim has not been properly placed before the Tribunal, it cannot be withdrawn or dismissed, it is not open for determination or 7 of 18 Sept 2023 consideration at all, unless and until it is brought as a claim or appended to an existing claim by a successful amendment application, Northumberland County Council v Trebillcock UKEAT/0527/12/RN.[67]I have concluded that the ordinary unfair dismissal claim had no reasonable prospects of success because the Claimant accepts he did not have two years’ continuous service. It therefore matters not whether the claim was withdrawn or before me today, it was hopeless.[68]Either way, I could find no evidence in any of the documents I was referred to or, with the consent of the Claimant, that I reviewed on the electronic case file of the Tribunal that showed any judge intimating to the claimant that if he withdrew the unfair dismissal claim his other claims would receive judgment under rule 22, which was his allegation before me.[69]Having looked at the Claim form, there is no claim for automatic unfair dismissal within it. I asked the Claimant to identify where in the claim for the automatic unfair dismissal claim was pleaded. He simply said that the mention of his other claims were automatically unfair grounds. I reject that submission.[70]There has been no amendment to the claim and therefore an automatic unfair dismissal claim is not before the Tribunal.[71]In any case, I find the withdrawal was an unequivocal one, made voluntarily and was clear. Indeed, it was a repeated withdrawal.[72]On 7 February 2025 he said “Withdraw unfair dismissal constructive dismissal ( previously requested). Vacate 22nd April hearing”.[73]The Claimant repeated that wording on 13 February 2025. In either email there is no mention of this being part of an agreement with a judge that if he withdrew the unfair dismissal claim, then he would get a default judgment in return.[74]The Clamant made no reservations in his withdrawal emails about why the claims should not be dismissed upon withdrawal. They were so dismissed and, in my view, correctly so.[75]Consequently, there was never a pleaded claim for automatic unfair dismissal. The ordinary unfair dismissal claim was hopeless and was properly withdrawn. I have no power to go behind that withdrawal and the dismissal judgment was properly made. Application for the judge to sit with members[76]Part way through the hearing when I started to hear the Claimant’s evidence, the Claimant applied to have the claim heard by a full Tribunal.[77]In my view, what triggered the application was me asking the Claimant questions about his notice period and, in particular, about the contract seemingly stating at clause 1 in the table that the period of notice within the introductory period was two weeks, when the Claimant was claiming it was 4 weeks. He had also admitted that he was in the introductory period when his employment ended. 8 of 18 Sept 2023[78]The Claimant submitted that the tribunal members could witness the hearing in real time, despite it being recorded. He also submitted that a few heads are better than one and with a judge alone there was a possibility of things getting missed.[79]He said when he was before the tribunal in a different case in the past, he had a full panel and essentially he said that he was making the application and it was for the tribunal to decide. If it was going to burden the Tribunal he said don’t worry about it.[80]I asked the claimant a few times whether he was making the application to sit with the panel or not. I informed him that, clearly, I had not discussed with the admin team whether a panel could join at short notice and therefore if he applied for it and the application went in his favour, then that could lead to an adjournment. I explained that it wasn’t for me to decide whether to pursue the application or not. He either made the application or he didn’t.[81]In the end, The Claimant chose to withdraw the application. The hearing continued with a judge alone. The Claims[82]The Claimant’s claims, at the start of his evidence, were therefore notice pay/breach of contract, holiday pay and unpaid sick ay as an unlawful deduction of wages.[83]There is mention in the ET1 that the Claimant felt victimised because he had 1.5 days off sick. Clearly, that is not an Equality Act victimisation complaint and no discrimination complaints were therefore before the Tribunal. The issues[84]The issues to be decided were: 84.1. Was the Claimant entitled to sick pay for sickness absence? 84.2. If he was, was he paid for his 1.5 days sickness absence? 84.3. If not, was that an unlawful deduction of wages? 84.4. If so, what should he have been paid? 84.5. Was the Claimant paid the correct amount of accrued but untaken annual leave upon termination of his employment? 84.6. If not, what was he entitled to and how much should he be paid by the First Respondent either as damages for breach of contract or unlawful deduction of wages? 84.7. Was the Claimant dismissed or did he resign? 84.8. Did the Respondent misrepresent the Claimant’s shift times to him when the Claimant entered into the contract fi employment? 9 of 18 Sept 2023 84.9. If so, did he rescind the contract or affirm it when he learnt of the misrepresentation? 84.10. Was the Respondent entitled to pay the Claimant in lieu of his notice period? 84.11. What notice period was the Claimant entitled to? 84.12. Was he paid for that notice period correctly? 84.13. If not, how much should the Claimant have been paid? THE LAW: BREACH OF CONTRACT, MISREPRESENTATION AND UNPAID WAGES Burden of proof[85]In the case of the breach of contract claims, it is for the Claimant to prove there was a binding contract, that the contract was breached and that the damage from the breach was contractually foreseeable after Hadley v Baxendale [1854] EWHC Exch J70.[86]When considering the burden of proof more generally, the burden usually rests with the person who is asserting something to be a factual allegation and the standard of proof is on the balance of probabilities as summarised by HHJ Auerbach in Hovis Limited v Louton [2021] UKEAT/1023/20/LA. Breach of contract[87]Contracts of employment are a unique contract that is distinct from commercial contracts for goods or services, but usual contractual principles apply generally to them.[88]Breach of contract is a common law claim not based on statute. However, the power to consider a wrongful dismissal complaint in the Employment Tribunal is provided for by the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.[89]If a contract is breached, then damages are payable to place the parties where they would have been had the contract been fulfilled properly in the normal course of the relationship or damages are payable if they were in contemplation of the parties at the time the contract was entered into. In both cases, the damages must be a probable result of the breach Hadley (above)[90]Damages for the manner of a wrongful dismissal are not recoverable following Johnson v Unisys Ltd [2001] UKHL 13. Consequently, personal injury damages or injury to feelings are not recoverable. Misrepresentation[91]For there to be a misrepresentation there must be a false representation either express, implied or by conduct, the definition of which does not include a person staying silent Keates v Lord Cadogan (1851) 10 CB 591. 10 of 18 Sept 2023[92]The misrepresentation must cause the representee receiving the representation to change their position Briess v Woolley [1954] AC 333 at 354, induce them into the contract and be addressed to the representee Peek v Gurney (1873) LR 6 HL 377.[93]The misrepresentation need not be the sole cause of inducement into the contract Attwood v Small (1838) 6 CL&Fin 232, 502.[94]The misrepresentation must be made at the relevant date, which is before or at the time the representee changed their position because of it Briess above.[95]At common law, which is all we have jurisdiction for in the Tribunal when it comes to breach of contract cases, there is no right to damages for loss stemming from a misrepresentation unless the misrepresentation is fraudulent or negligent, in which case a claim in tort law must be made, which the Tribunal does not have jurisdiction to hear.[96]The remedy for misrepresentation is usually recission of the contract. However, if the person realises a misrepresentation has been made and continues with the contract by conduct or words that evidence keeping it alive then that will amount to an affirmation of the contract and the right to rescind it is lost. Unpaid wages – sick pay[97]Section 13 of the Employment Rights Act 1996 says as follows where relevant: “13 Right not to suffer unauthorised deductions.(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly 11 of 18 Sept 2023 payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.(5) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.(7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer. …”[98]Section 14 excepted deduction arguments, were not put forward by the First Respondent.[99]I needed to answer the following broad questions about each of the alleged deductions: 99.1. Was the Claimant lawfully entitled by contract or otherwise to the payments alleged? 99.2. If so, had the Claimant been notified in a valid contract or otherwise that the Company was entitled either to pay nothing for that payment in the circumstances or less than that payment in the circumstances? 99.3. If so, was the amount of money the Claimant expected to receive in his wage payment, less than he expected so as to amount to a deduction? 99.4. Did those circumstances allow the Company to lawfully make the deduction? 99.5. If not, there was an unlawful deduction. How much money is the Claimant due?[100]Wages includes consideration for work done or agreed to be done, (if it subsequently was not done), and anything else that falls within the definition in section 27 of the Employment Rights Act 1996. 12 of 18 Sept 2023[101]The burden of proving: 101.1. the deduction has been made; 101.2. it was a deduction of wages; and 101.3. the fact they were lawfully entitled to the wages; is with the Claimant.[102]The Tribunal may also need to make a factual enquiry so that it can be satisfied that there were lawful circumstances either contractual, statutory or otherwise allowing the deduction by the Respondent. This often involves the Company leading evidence to prove why it made the deduction and/or behaved as it did.[103]So long as the circumstances allow the deduction, and there are no other issues with notification in writing etc., there are no rules or requirements of reasonableness or fairness about the deduction.[104]If the deduction can be made lawfully, then it can be made whether the surrounding circumstances appear to cause unfairness to the employee, or not, in the circumstances of the particular case. Unpaid holiday pay[105]Unless the contract of employment stated otherwise, all employees are entitled to payment for accrued but untaken annual leave upon the date of termination of employment under regulation 14 of the Working Time Regulations 1998.[106]However, the payment in lieu cannot amount to zero even if the contract states that nothing is due.[107]Unless the contract of employment says otherwise, the amount of annual leave entitlement is set out in the Working Time Regulations 1998 as being a maximum of 28 days pro rata for part time employees to include both 20 days of ordinary leave and 8 bank holidays.[108]If the leave calculation is contractual then the holiday pay claim upon termination of employment can be brought as an unpaid wages claim or breach of contract claim. THE CLAIMS Sick pay – findings of fact[109]The first of the claims the Claimant makes is for sick pay. He claimed he was owed 1.5 days sick leave.[110]Sick pay was calculated by the Company as being £192.00 gross as per the payslip at page 60 in the bundle. This was logged as being unpaid. 13 of 18 Sept 2023[111]No evidence was presented about whether sick pay was payable or whether it was SSP only after a few waiting days that was payable.[112]The contract simply stated at clause 11 that the Claimant may be entitled to company sick pay.[113]It wasn’t in dispute that the Claimant had time off sick because of the pay slip and this is admitted at paragraph 7 (d) and (f) of the Grounds of resistance.[114]The ET3 does not go into detail about the sick pay claim and if the Claimant was expressly not entitled to sick pay, then in my view the ET3 was likely to have said so expressly and provided the relevant clauses of the contract as it did for the other claims. Outcome - sick pay[115]The Claimant was absent on sick leave and that amounted to, according to the Respondent, £192 gross.[116]On the limited evidence I have, on balance I find the Claimant was owed that amount in sick pay and was not paid it. That was an unlawful deduction.[117]No reason for non payment has been put forward by the First Respondent.[118]His unlawful deduction of wages claim therefore succeeds.[119]The Claimant put forward no consequential losses as a result of the failure to pay sick pay. Notice pay - findings of fact[120]The Contract of employment is clear and it was not disputed by the Claimant he accepted under oath that he was in the introductory period, akin to a probationary period, when his contract ended.[121]The Claimant also didn’t really dispute that the contract stated that he was entitled to two weeks’ notice during he introductory period. There was an error at clause 3 in the contract that makes reference to a notice period in clause 17 of the contract, which deals with confidential information, not notice meaning there was some ambiguity in the notice period length during he introductory period.[122]However, the table in clause one is very clear and sets out both applicable notice periods. On balance, I find the notice period of two weeks was therefore clear to the Claimant and he understood that was the applicable notice period.[123]When considering the allegations of misrepresentation, the Respondent accepted in its defence that at interview the Claimant was informed that his hours of work were 9.00 – 18.00. Then, in the contract, the hours were said to be 09.30 – 18.30.[124]Consequently, given the First Respondent admitted during the review meeting in the introductory period, that they considered the hours of work to be 09.00 – 18.00, the hours of work in the contract were a false statement. Yes, the Respondent had 14 of 18 Sept 2023 the power to vary those hours, but they still amounted to a false statement of normal hours of work directed at the Claimant.[125]However, the Claimant has not argued or evidenced that he wouldn’t have entered into the contract if the hours were 09.00 – 18.00. He has provided no evidence that he was induced into the contract because of the hours of 09.30 – 18.30 either in whole or in part. His evidence was, rather, that the contract was breached because of a unilateral variation, not because he wouldn’t have accepted the role if the hours were different.[126]In submissions, the Claimant stated that he had refused to adhere to the new hours of work. However, I find that he also failed to adhere to the hours of work of 09.30 – 18.30 because the respondent stated he was late even past these hours on two occasions.[127]In the review meeting, the Claimant also stated that despite the mistake with the hours, he agreed to work on his time keeping and to start work at 9am at page 46 PDF of the bundle. In addition, he stated the earlier start shouldn’t be a problem even though he had made plans around those hours.[128]The Claimant did not challenge the validity of the notes of the review meeting.[129]Further, also in that meeting, the Claimant is alleged to have said to a customer “why are you buying a Peugeot, French cars are shit” and when the Claimant was reported by a colleague for saying that, the Claimant then challenged the colleague in a threatening manner using words such as “Why are you calling me a pussy”.[130]When asked how he would score his engagement, attitude at work generally and his general behaviours at work from his point of view, the Claimant said because there were differences of position he would say no comment. I do not understand why the Claimant would say no comment when he was trying to argue in the meeting that he had been pleasant to everyone.[131]On balance, I believe the comments were said by the Claimant and that triggered the termination of his employment as per the termination letter.[132]The Claimant did not produce the email invite to the probation review meeting, which was clearly documented in the meeting notes as being sent to the Claimant 24 hours in advance.[133]The complaint about the Peugeot comment had come from the customer according to the First Respondent and they terminated his contract as a result of the inappropriate comments to customers and colleagues and bringing the company into disrepute.[134]The Claimant says he resigned. I am not persuaded he did. The meeting notes document that the Claimant only mentioned resignation when he was informed he was being dismissed and he said in response, he’d resigned anyway as follows: “MH: Again, it's just not following the procedure. So, where we are at the moment - I think with the amount of red flags which we've had in your first week, we are going to terminate your employment with Cazoo with immediate effect. You will get two weeks’ pay in lieu... 15 of 18 Sept 2023 KA: I just have to say I already resigned so I'm giving notice.[135]I find the First Respondent terminated the contract first. As soon as it was said to the claimant that his employment was terminated with immediate effect and he would receive two weeks pay in lieu of notice, a resignation after that had no effect whatsoever, the contract was already at an end.[136]The Contract of employment allowed for a discretionary PILON at clause 16.1.[137]In the payslip dated 25 July 2023, there is an entry for the PILON payment of £960.00 gross.[138]The Claimant’s normal hours of work were 8 hours per day for five days a week making 40 hours per week. The Claimants hourly rate of pay is in the payslip as being £12 per hour. 139. £12 per hour x 40 hours a week is £480 gross therefore two weeks PILON would have been £960.[140]The Claimant accepted he had been paid this PILON payment when asked by me under oath. Outcome – notice pay/breach of contract[141]The Claimant was entitled to two weeks notice as per the table in clause one. He accepted he was dismissed in his introductory period.[142]Although a false representation was made to the Claimant about the hours of work when he was sent the contract after his interview and offer, I am not convinced that this induced him even in part to accept the , because later on he said the hours should be a problem.[143]Either way, the Claimant said that despite the First Respondent informing him that was a mistake therefore making it clear that a misrepresentation had occurred, the Claimant said he would work to the new hours.[144]Consequently, I find he affirmed the contract.[145]If he had accepted the misrepresentation and treated the contract as at an end then, in my view, he would not have agreed to work to the new hours.[146]Contractually, despite the rights or wrongs of it, the Respondent terminated the contract immediately at the review meeting and paid the Claimant in lieu of his two weeks notice pay.[147]The Claimant was only entitled to two weeks’ notice and the Respondent had the right to elect to pay in lieu of notice in the contract.[148]The Claimant has therefore been paid the correct amount of notice pay and this claim fails. 16 of 18 Sept 2023 Holiday pay - findings of fact[149]The First Respondent accepted in its ET3 that the Claimant was entitled to payment in lieu of annual leave accrued to the termination date. It said he was entitled to 1.5 days accrued but untaken leave.[150]There is no evidence the Claimant took any holiday during his brief employment with the First Respondent.[151]The leave year ran from 1 January – 31 December as per the contract of employment at clause 10.1.[152]The Claimant’s annual entitlement was 33 days including public holidays and a day’s holiday would be calculated as 1/260 of the Claimant’s salary of £24,960 gross per annum.[153]The Claimant was a full time employee working 40 hours a week.[154]Consequently, under the contract the leave calculation should have been 33/260 = 0.1269…. x 12 days worked = 1.523…. days of accrued annual leave rounded to the nearest half hour is 1.5 days as the Respondent has said.[155]This does not detract from the statutory minimum leave calculation which would also have been 1.5 days rounded up, namely, 28/260 x 12 days = 1.29…[156]The contract also stated at clause 10.2 that statutory leave is taken first then the contractual leave over and above the statutory minimum is taken second. 157. 1.5 days pay is 12 hours of pay. 12 hours x £12 per hour is £144 gross.[158]Under oath, the Claimant accepted that he had been paid his annual leave entitlement as the payslip he produced showed. Outcome – holiday pay[159]The Claimant is entitled to pay in lieu of his annual leave that he accrued but had not taken upon termination of employment.[160]He was entitled to 1.5 days’ leave and he was paid for 1.5 days’ leave by the First Respondent.[161]The Claimant is not entitled to any more leave than that and he was paid the correct amount of leave by the First Respondent.[162]Consequently, there has been no breach of contract or unlawful deduction of wages about holiday pay or indeed any breach of the Working Time regulations 1998. This claim therefore fails, and is dismissed. Injury to feelings 17 of 18 Sept 2023[163]The Claimant made a claim for injury to feelings in his ET1. As there are no claims of discrimination or anything akin to discrimination in the ET1, no injury feelings are recoverable. Interest[164]The Tribunal has no jurisdiction to award interest on unlawful deductions of wages amounts. The claim for interest therefore fails. Remedy[165]Consequently, all claims fail except the sick pay claim and I award the Claimant £192 gross deducted from his wages unlawfully by the Respondent.[166]If this payment is paid to the Claimant by the First Respondent then PAYE deductions should be made as normal by the payroll department and the Claimant should receive the net payment.[167]If the Claimant is paid the gross figure of £192, then he should account to HMRC for any income tax payable on that amount. Order approved by: