Mr A Handy v Cheshire Local Business Ltd: 2402195/2024
JUDGMENT
The complaint that the claimant was unfairly dismissed is struck out.REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years’ service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than two years.[4]Therefore, the claimant is not entitled to bring such a complaint.[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.Evidence
[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment.Issues to be determined
[1]At the outset it was confirmed that the remaining claims to be determined were the claims for unlawful deduction from wages, accrued holiday pay and notice pay, as set out in the List of Issues prepared following the preliminary hearing on 1 October 2024. Orders[2]A number of orders were made for the conduct and good management of the proceedings during the course of the Hearing. In making the orders the tribunal considered the overriding objective and the Employment Tribunals Rules of Procedure 2024. Orders included the following.[3]The claimant asserted that he had not seen the bundle prepared by the respondent because he could not open it from the email he had received. A further copy of the bundle was sent to the claimant, who was given time in a short break to consider the contents of the bundle and to confirm whether there were any documents missing from the bundle. After the break the claimant confirmed that he had read the bundle and the only document missing was an email from the respondent’s representative, Melanie Rayner, dated 20 May 2025. The respondent had no objection to that being included in the documentary evidence for consideration by the tribunal. It was therefore accepted as evidence. The claimant confirmed that he was happy to proceed with the hearing and to give his evidence. Submissions[4]The claimant made a number of submissions which the tribunal has considered with care but does not rehearse in full here. In essence it was asserted that:-4.1 the claimant was owed wages up to 12 February 2024 in the sum of £575.38;4.2 he was entitled to commission payments due and owing on the termination of employment;4.3 he had accrued 10.5 holiday pay over the course of his employment and did not accept the holiday records of the respondent as accurate;4.4 there had been an unlawful deduction from wages of £313.00 for the car park permit. This deduction had been made without authorisation or agreement;[5]Consultant for the respondent made a number of detailed submissions which the tribunal has considered with care but does not rehearse in full here. In essence it was asserted that:-5.1 the claimant had accrued 7 days holiday entitlement in the holiday year ending 31 December 2024 and had taken 7.5 days;5.2 the claimant had accrued 4 days holiday entitlement in the final holiday year and had taken 3 days. The respondent concedes that it owes the claimant 1 days holiday pay in the sum of £80.77 and had offered to pay this sum to the claimant prior to the hearing but the claimant had refused to provide his bank details to enable the payment to be made;5.3 the cost of replacement of the car permit was lawfully deducted from the claimant’s wages in accordance with the contractual agreement;5.4 commission was payable on condition that the claimant remained in employment at the date the payment fell due. The final payment of commission fell due on 29 February 2024, when the claimant was no longer in the employ of the respondent;5.5 the claimant’s last day of employment was 9 February 2024. His final pay was calculated up to that date;5.6 payment of wages for the half day on 12 February 2024 included in the payment of one week’s pay in lieu of notice. Evidence The claimant gave evidence.[7]The respondent relied upon the evidence of Mr Simon Cook, managing director of the respondent company.[8]The witnesses provided their evidence from written witness statements. They were subject to cross-examination, questioning by the tribunal and, where appropriate, re-examination.[9]The respondent provided a bundle of documents which was agreed at the hearing. Additional documents were presented during the course of the Hearing, either in accordance with the Orders outlined above or with consent. References to page numbers in these Reasons are references to the page numbers in the agreed Bundle.Facts
[10]Having considered all the evidence the tribunal has made the following findings of fact. Where a conflict of evidence arose the tribunal has resolved the same, on the balance of probabilities, in accordance with the following findings.[11]The claimant commenced work with the respondent on 2 October 2023. He was presented with a Contract of Employment (pages 61-66) which he electronically signed on 2 October 2023, extracts from which read as follows:11.1 Any commission will only be paid on the condition that you are in our employment and not serving notice at the time that the commission is due to be paid.11.2 ANNUAL LEAVE AND PUBLIC/BANK HOLIDAYS Your holiday year begins on 1 January and ends on 31 December each year, during which you will receive a paid holiday entitlement of 22 days in addition to the public/bank holidays. The public/bank holidays each year are: New Year's Day The last Monday in May Good Friday The last Monday in August Easter Monday Christmas Day The first Monday in May Boxing Day In the event of termination of employment holiday entitlement will be calculated as 1/12th of the annual entitlement for each completed month of service during that holiday year and any holidays accrued but not taken will be paid for.11.3 NOTICE OF TERMINATION TO BE GIVEN BY EMPLOYER 1 month (service) up to successful completion of your probationary period - 1 week. On successful completion of your probationary period - 1 month. PAY IN LIEU OF NOTICE We reserve the contractual right to give pay in lieu of all or any part of the above notice by either party.[12]The claimant provided an electronic signature on 2 October 2023 to a Deductions from Pay Agreement (pages 67-68) which includes the following: On the termination of your employment you must return all the Company’s property which is in your possession or for which you have responsibility. Failure to return such items will result in the cost of the items being deducted from any monies outstanding to you. This is an express written term of your contract of employment.[13]The claimant started work on a probationary period. He did not pass that probation and was dismissed on 12 February 2024. [On this the tribunal accepts the evidence of the claimant, which is supported by the documentary evidence. The ET3 confirms the date of termination cited by the claimant as being correct and the email from Melanie Rayner to the tribunal dated 20 May 2025 confirms the termination date as 12 February 2024.][14]The claimant was not required to work his notice period but was paid one week’s pay in lieu of notice in the sum of £417.04 net.[15]The claimant worked one half a day on 12 February before he was dismissed and told to leave work.[16]The claimant worked 7 days in February 2024 ( 1 , 2, 5 -9 February 2024) prior to his dismissal on 12 February 2024. He makes no complaint about failure to pay wages in January 2024.[17]The parties agree that the claimant’s daily rate of pay was £80.77.[18]The claimant was contractually entitled to commission payments. His next payment of commission was due to be paid at the end of February 2024.[19]On 29 February 2024 the claimant was paid his wages for 1-9 February 2024. A deduction was made from those wages in the sum of £313.00. (page 81)[20]The claimant had use of a car park permit for the purposes of his employment. He failed to return it on termination of his employment. It cost the respondent the sum of £313.00 to replace that permit, as confirmed in the documentary evidence provided by the respondent. It deducted that sum from the claimant’s final wage payment as indicated above.[21]The respondent’s holiday year ran from 1 January to 31 December. In the holiday year ending 31 December 2023 the claimant took and was paid for 7.5 days holiday, including Christmas Day and Boxing Day.[22]The claimant had used all his holiday entitlement for the holiday year ending 31 December 2023. There was no agreement to carry any entitlement over to the next holiday year.[23]In the holiday year commencing 1 January 2024 the claimant took and was paid for 3 days holiday on 1 January and 1 and 2 February 2024. [On the days holiday was taken the tribunal accepts the evidence of the respondent. The claimant says that he cannot recall whether he took the holidays or not. I reject his assertion that the holiday records provided by the respondent have been altered in some way. There is no satisfactory evidence to support that assertion.]The Law
[24]Section 13 of the Employment Rights Act 1996 states: (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. (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 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”.[25]Once it is established that there is a statutory or contractual provision or a written agreement authorising the type of deduction in question — and what the scope of that authorisation is — a tribunal may then go on to consider whether the actual deduction is in fact justified. Fairfield v Skinner 1992 ICR 836 EAT[26]A worker is entitled to payment in lieu of his unused holiday entitlement on termination of employment. The Working Time Regulations provide that, where no provisions of a relevant agreement apply, the sum payable to a worker in lieu of his or her unused holiday entitlement should be calculated according to the following formula: (A x B) – C where: A is the minimum period of leave to which the worker is entitled B is the proportion of the worker’s leave year which expired before the termination date C is the period of leave taken by the worker between the start of the leave year and the termination date. Determination of the Issues[27]This includes, where appropriate, any additional findings of fact not expressly contained within the findings above but made in the same manner after considering all the evidence.[28]The claimant was dismissed and the effective date of termination was 12 February 2024.[29]The claimant worked one half a day on 12 February before he was summarily dismissed and told to leave work. The respondent subsequently paid the claimant one week’s pay in lieu of notice in the sum of £417.04 net. The claimant has not challenged the respondent’s evidence that this sum is the correct net payment for one week’s notice pay. The claimant was entitled to and received one weeks’ pay in lieu of notice. His claim for any additional notice pay is unsuccessful.[30]The claimant worked 7.5 days in February 2024. The respondent paid the claimant for 7 days. The calculation of the final salary on 29 February 2024 was based on the last day being 9 February 2024. It is not clear on what basis the respondent asserts that the payment of one weeks pay in lieu of notice includes the half a day’s pay for 12 February. There is no documentary evidence relating to the payment of the notice pay. Simply a record of a net Bank payment to the claimant. The tribunal finds that the claimant was entitled to payment for half days pay on 12 February in the sum of £40.38 gross.[31]In relation to the deduction from pay in relation to the car park permit. It is clear that the claimant signed the Deductions from Pay Agreement, which gave the respondent the right to deduct from the claimant’s wages the cost of replacement of the car park permit. This was expressed to be an express term of the claimant’s contract of employment, The claimant accepts that he did not return the car park permit on the termination of his employment. The respondent has provided the documentary evidence to support the amount deducted from the claimant’s final salary. The claimant has not challenged that evidence. The tribunal accepts the evidence of the respondent and finds that this was the true cost of replacement of the car permit. The deduction of £313.00 was justified and was a lawful deduction from the claimant’s wages.[32]The claimant’s contract of employment makes it clear that he was not contractually entitled to commission payments which fell due after termination of employment. The claimant is not entitled to commission payments which fell due on 29 February 2024. His claim for commission payments is not well-founded.[33]The claimant makes claim for holiday pay accrued at the termination of employment. The claimant can make claim for accrued holiday pay outstanding for the current holiday year, unless there has been agreement to carry over entitlement for the previous holiday year. There is no evidence of any such agreement. In any event, the tribunal accepts the evidence of the respondent that the claimant had used all his entitlement for the holiday year ending at the end of December 2023. The claimant says that he cannot recall whether he took the holidays or not. I reject his assertion that the holiday records provided by the respondent have been altered in some way. There is no satisfactory evidence to support that assertion.[34]For the holiday year 2024 the claimant was entitled to the appropriate proportion of annual leave calculated as follows. The claimant had worked 6 weeks which is 0.125 of the holiday year. 30 x 0.125 = 4 days less the days taken 3 . (1 2 Feb and 1 Jan.)= 1 day The respondent asserts that the claimant was paid for 3 days holiday pay claimant was paid for 3 days and is owed one day in the sum of £80.77 gross. The respondent has conceded that. Approved by