Mr K Luong and Others v Mr R D Cafagna and All 4 One Catering Ltd: 2306502/2024 and Others
JUDGMENT
Employment Tribunal Procedure Rules 2024 – Rule 22[1]The Claimants’ claims that have the case numbers: 2306502/2024, 2306503/2024, 2306504/2024, 2306505/2024, 2306506/2024, 2306507/2024, 2306508/2024 and 2306509/2024 1 of 8 were issued in the London South Employment Tribunal on 31 August 2024 as part of a multiple claim presented by the First Claimant.[2]While the Case Management Orders made on 5 February 2025 identify two people as the seventh and eighth claimants, that was in error. Those references are in fact to one person, Mr Diego Orobosa EkunweFuejo (listed as the Seventh Claimant in this judgment), who was identified as a single person on the multiple claim sheet attached to the Claim Form presented by the First Claimant on 31 August 2024.[3]The Fifth Claimant also presented an additional claim to the London South Employment Tribunal on 21 August 2024, given case number 6009178/2024. Her complaints in that claim largely overlap with the complaints she made in 2306506/2024, save that in case number 6009178/2024 the Fifth Claimant also complained that she was not given a statement of initial employment particulars, as required by section 1 of the Employment Rights Act 1996 (the 1996 Act).[4]The Claimants have withdrawn their claims against the First Respondent, and those claims are dismissed upon their withdrawal.[5]The Second Respondent has failed to present a valid response to either claim on time on the expiry of the time limit in Rule 17 of the Employment Tribunal Procedure Rules 2024 (the ET Rules).[6]The Employment Judge has decided that, pursuant to Rule 22(2) of the ET Rules, a determination can properly be made of the claim, or part of it, on the available material, and finds that: a) The Claimants were each employed by the Second Respondent for varying periods of time, but none of them had two years’ service required by section 108 of the 1996 Act, and so their complaint of ordinary unfair dismissal does not succeed and is dismissed; b) The Second Respondent did not pay the Claimants for some of the work performed (both by way of sums due for hours worked and in respect of service charges payable to them), and therefore made unauthorised deductions from their wages under section 13 of the 1996 Act. This complaint brought by the Claimants is well-founded; c) The Second Respondent deducted sums from the Claimants’ wages on the condition that those sums were to be contributed by the Claimants to a pension scheme. However the Second Respondent failed to pay those deducted sums across to the pension scheme, and so those were unauthorised deductions from their wages under section 13 of the 1996 Act. The value of those deductions was 5% of the Claimants’ gross wages for the periods of their employment from May to July 2024 (or the portion of that period that the individual Claimant worked). This complaint brought by the Claimants is well-founded; 2 of 8 d) On the termination of the employment of the Second Claimant, the Third Claimant, the Fourth Claimant, the Fifth Claimant, the Sixth Claimant and the Seventh Claimant, the Second Respondent failed to pay them compensation related to their entitlement to annual leave under regulations 13 and 13A of the Working Time Regulations 1998. This complaint brought by those Claimants is well-founded; e) Each of the Third Claimant and the Sixth Claimant resigned from their employment with the Second Respondent; f) In respect of those of the Claimants who were dismissed by the Second Respondent, namely the First Claimant, the Second Claimant, the Fourth Claimant, the Fifth Claimant, the Seventh Claimant and the Eighth Claimant, they were dismissed without notice, or pay in lieu of notice, by the Second Respondent.(i) However, none of the First Claimant, the Fifth Claimant nor the Seventh Claimant worked for the Second Respondent for more than a month, and they did not have a written contract of employment, so the Employment Tribunal is not satisfied that there was any obligation on the Second Respondent to give them notice to terminate his employment;(ii) The Second Claimant worked for the Second Respondent for more than one month but less than two years. He did not have a written contract of employment, so the statutory minimum notice the Second Respondent should have given to him to terminate his employment was one week. The Second Respondent did not give the Second Claimant that notice, and so the Second Claimant is entitled to one week’s wages by way of damages for wrongful dismissal; and(iii) The Fourth Claimant and the Eighth Claimant each had a written contract of employment which provided that they were each entitled to four weeks’ notice to terminate their employment. That notice was not given, and therefore each of the Fourth Claimant and the Eighth Claimant is entitled to four weeks’ wages by way of damages for wrongful dismissal; and g) The Fifth Claimant was not provided with a statement of initial employment particulars, in breach of the requirement in section 1 of the 1996 Act.[7]The Claimants each raised a grievance with the Second Respondent in respect of their unpaid wages, and the Second Respondent did not act on that grievance at all. The Employment Judge has determined that, in light of that fact, and in light of the fact that the Second Respondent exists and was effectively run by the First Respondent and so it could have made some efforts to comply with the ACAS 3 of 8 Code of Practice on Disciplinary and Grievance Procedures but made none whatsoever, it is appropriate to make an adjustment to the awards payable to each of the Claimants to increase those awards by 25% pursuant to section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.[8]The Second Respondent failed to comply with its obligation under section 8 of the 1996 Act to provide the Claimants with itemised pay statements which accurately reflect the amounts paid to them. No further remedy, besides this declaration, is appropriate here, as the Claimants have each claimed and been awarded sums in respect of unauthorised deductions from their wages.[9]The Claim Form presented by the Claimants ticked the box to indicate that a protected disclosure complaint, of both protected disclosure detriment and dismissal for the sole or principal reason that they had made a protected disclosure, was being brought. In this hearing the Claimants confirmed that those complaints are withdrawn, and are dismissed upon their withdrawal. The First Claimant (case number 2306502/2024)[10]The Second Respondent must pay to the First Claimant damages in the sum of £762.56 gross, calculated as follows: a) In respect of unauthorised deductions from his wages:(i) £579.55 in respect of wages earned in June and July 2024; and(ii) £30.50 in respect of sums deducted from his wages purportedly to be made as contributions to the pension scheme by the First Claimant, but which were not in fact paid across to the pension scheme by the Second Respondent; and b) £152.51 in respect of a 25% uplift on those amounts for complete failure[11]The First Claimant is not claiming any sum by way of outstanding holiday pay and, as noted above, is not entitled to any damages for wrongful dismissal (notice pay). The Second Claimant (case number 2306503/2024)[12]The Second Respondent must pay to the Second Claimant damages in the sum of £2,248.96 gross, calculated as follows: a) £1,323.40 in respect of wages earned in May and June 2024; b) £69.65 in respect of sums deducted from his wages purportedly to be 4 of 8 c) £240.24 by way of damages for wrongful dismissal (notice pay) (one week’s pay); d) £165.88 in lieu of accrued but untaken holiday on the termination of his e) £449.79 in respect of a 25% uplift on those amounts for complete failure The Third Claimant (case number 2306504/2024)[13]The Second Respondent must pay to the Third Claimant damages in the sum of £4,943.81 gross, calculated as follows: a) £3,489.95 in respect of wages earned in May and June 2024; b) £183.68 in respect of sums deducted from her wages purportedly to be c) £281.42 in lieu of accrued but untaken holiday on the termination of her d) £988.76 in respect of a 25% uplift on those amounts for complete failure The Fourth Claimant (case number 2306505/2024)[14]The Second Respondent must pay to the Fourth Claimant damages in the sum of £11,481.53 gross, calculated as follows: a) £6,326.35 in respect of wages earned in May, June and July 2024; b) £332.97 in respect of sums deducted from her wages purportedly to be c) £2,080.00 by way of damages for wrongful dismissal (notice pay) (four weeks’ pay); d) £445.90 in lieu of accrued but untaken holiday on the termination of her e) £2,296.30 in respect of a 25% uplift on those amounts for complete failure 5 of 8 The Fifth Claimant (case number 2306506/2024)[15]The Second Respondent must pay to the Fifth Claimant damages in the sum of £2,166.99 gross, calculated as follows: a) £684.13 in respect of wages earned in June and July 2024; b) £36.01 in respect of sums deducted from her wages purportedly to be c) £117.45 in lieu of accrued but untaken holiday on the termination of her employment; d) £209.40 in respect of a 25% uplift on those amounts for complete failure to comply with the ACAS Code of Practice; and e) £1,120.00, being two weeks’ pay, given that the Fifth Claimant was not provided with a statement of employment particulars and the Second Respondent has made unauthorised deductions from her wages and has failed to pay her for her accrued but untaken annual leave under the Working Time Regulations 1998, thereby engaging section 38 of the Employment Act 2002. The Sixth Claimant (case number 2306507/2024)[16]The Second Respondent must pay to the Sixth Claimant damages in the sum of £1,861.48 gross, calculated as follows: a) £1,343.00 in respect of wages earned in May 2024; b) £70.68 in respect of sums deducted from her wages purportedly to be Respondent; and c) £75.50 in lieu of accrued but untaken holiday on the termination of her d) £372.30 in respect of a 25% uplift on those amounts for complete failure The Seventh Claimant (case number 2306508/2024) 6 of 8[17]The Second Respondent must pay to the Seventh Claimant damages in the sum of £981.93 gross, calculated as follows: a) £673.45 in respect of wages earned in May 2024; b) £35.44 in respect of sums deducted from his wages purportedly to be Respondent; and c) £76.65 in lieu of accrued but untaken holiday on the termination of his d) £196.39 in respect of a 25% uplift on those amounts for complete failure The Eighth Claimant (case number 2306509/2024)[18]The Second Respondent must pay to the Eighth Claimant damages in the sum of £5,017.21 gross, calculated as follows: a) £2,508.92 in respect of wages earned in May, June and July 2024; b) £132.05 in respect of sums deducted from his wages purportedly to be c) £1,372.80 by way of damages for wrongful dismissal (notice pay) (four weeks’ pay); and d) £1,003.44 in respect of a 25% uplift on those amounts for complete failure[19]The Eighth Claimant is not claiming any sum by way of outstanding holiday pay.[20]The hearing listed for 9 and 10 October 2025 is vacated.