Mr M A Ishfaq v Mediscan Diagnostic Services Ltd: 2405559/2022
JUDGMENT
Upon the parties agreeing terms of settlement, and by consent, all proceedings in this matter are stayed until 4pm on 29th February 2024 at which time without further order they shall be dismissed upon withdrawal by the claimant unless before that time either party has notified the Tribunal that it does not wish this judgment to take effect. JUDGMENT The judgment of the Tribunal is that:[1]The claimant’s claims of unlawful deductions from wages succeed save that in relation to the childcare issue[2]The claimant’s claim of unfair dismissal fails and is dismissed.[3]The claimant’s claim for notice pay succeeds.[4]The claimant’s claim for a redundancy payment fails and is dismissed. A remedy hearing will be listed in due course and orders issued for the sameREASONS
[1]This matter was listed for two days having been reduced from four. However it was not possible to complete it within the two days originally listed and therefore two further days were required. There were various difficulties at the beginning of the hearing in obtaining the bundle and all the witness statements and there was a lack of clarity about who was going to give evidence for the respondent and the claimant although the respondent in particular. Additional documents were added during the hearing which I allowed will be evident from my judgment before how far they were relevant.[2]There was an issue as to whether one of the witnesses was abroad or not, as it appeared the protocol for witnesses giving evidence from abroad had not been followed at the beginning of the hearing I had to advise that it would not be possible to hear evidence from that witness, however, later I was assured the witness was now in the UK and their evidence could proceed.[3]The hearing started at 11.30 but there were delays while the above matters were resolved and while the respondent’s representative took further instructions. In addition a witness due to be heard on the second day was not contactable and the hearing had to finish earlier than necessary.[4]Towards the end of the hearing the respondent requested that they be allowed to recall Mr Usman in order to explain the holiday pay situation further. I refused this as all relevant information should have been in the witness statement and bundle. Whilst the claimant had not properly addressed this in his witness statement the respondent who had representation knew it was an issue as recorded clearly in the case management orders provided by Judge Allen on 21 December 2022. There had been an opportunity to ask supplemental questions. I invited the respondent’s representative to make submissions based on the existing evidence and the documentation in the bundle. I also noted that the respondent had been ordered to provide further details of their defence to the holiday pay claim but had not complied with this. Witness and Evidence[5]The witnesses for the respondent were Mr Mohammad Usman, Finance Director), Ms Shagufta Yasneen (employee), Ms Shanaz Bagum (childminder), Dr Noman Ehsan,(Director) ;Dr F Tabassium,ex-employee; Faika Khan (office manager)[6]For the claimant the claimant - himself. Ms Huma Ahmed Ex HR manager, Ms Rimsah Majeed (Claimant’s wife) Rizwan Shafiq (Business Development manager)[7]I had written statements from individuals who were not called to give evidence and I have not taken these into account.[8]As mentioned above further documents were added in the course of the hearing which if relevant will be referred to in the judgment.Issues
[9](As formulated at the Case Management Hearing on 21 December 2022 by Employment Judge Allen).(1) Unfair Dismissal1.1 Has the respondent shown that the principal reason for dismissal was some other substantial reason of a kind capable of justifying dismissal. The respondent contends that the reason for the dismissal was the end of the claimant’s fixed term contract, the claimant denies that it was and in any event denied that he was employed on a fixed term contract after March 2022.1.2 If so, applying the test of fairness in Section 98(4) did the respondent act reasonably in all the circumstances in treating that reason as sufficient to dismiss the claimant.(2) Breach of contract/notice pay4.1 On what date was the claimant’s employment terminated, when was he given notice and when did his employment end.4.2 What was the claimant’s notice period.4.3 Was the claimant employed for and/or paid for that notice period.(3) Holiday Pay (Working Time Regulations) 19983.1 Did the respondent fail to pay the claimant for annual leave the claimant had agreed but not taken when his employment ended.3.2 What was the respondent’s leave year.3.3 How much of the leave year had passed when the claimant’s employment ended.3.4 How much leave had accrued for the year by that date.3.5 How much paid leave had the claimant taken in that year.3.6 Were there any days carried over from previous holiday years.3.7 How many days remained unpaid.(4) Unauthorised Deductions 4.1 Did the respondent make unauthorised deductions from the claimant’s wages and if so, how much was deducted. 4.2 Was the claimant entitled to be paid for the two weeks paternity leave which he took from 3 to 17 May 2022, and if so, how much was he entitled to be paid for it. 4.3 Did the claimant provide the respondent with the required notice or complete the required form to be entitled to pay during his paternity leave.? Was any non-payment unauthorised deduction from wages.4.4 Was the claimant entitled to be paid any wages for April 2022 and if so, how much was he entitled to be paid. Did the claimant fail to provide the respondent with the times she required and if he did fail to do so does that mean any non-payment was not an unauthorised deduction from wages.4.5 The claimant claims payment for 35 days annual leave, 26 days from the previous holiday year and 9 from the final holiday year, was there any failure to pay any sums due in relation to the leave or accrued leave and unauthorised deductions from wages. 4.5 The claimant alleges that he was required to pay Mr Usman Mohammed £11,400 in various payments in the period between 31 January 2020 and 4 April 2022, were those payments and/or the requirement to make them an unauthorised deduction from wages and/or a payment made in contravention of Section 15 of the Employment Rights Act 1996 regarding when an employer shall not receive payments for a worker employed by him, should the respondent be required to repay any amount paid.4.6 The claimant alleges it was agreed he would be paid £500 per month by the respondent which is not being paid (totalling £3,500). He alleges there was an agreement with Mrs Arrum Nouman to pay him to pick up her children for the seven months from 15 November 2022 to the end of his employment. Did this occur and was any failure to pay any sums due an authorised deduction from wages.4.7 In May 2022 the claimant said he was only paid £150, what wages was the claimant due for that month, when did he work and what sums are due as a result, what was he paid. Was there an unauthorised deduction made from his wages. Note the provisions regarding the National Minimum Wage, Living Wage may be relevant to determination of some of the above issues. 5. Redundancy Pay 5.1 Was the reason for the termination of the claimant’s employment redundancy as provided for in Section 139 of the Employment Rights Act 1996. If so, to what redundancy payment was the claimant entitled. 6. Remedy 6.1 If the claimant succeeded in any of his claims how much should the claimant be awarded.Findings of Fact
[10]The claimant began working for the respondent on 27 September 2019 and his employment ended on 31 May 2022. His visa was due to end on 7 June 2022. He was recruited as a Business Development Manager initially (subject to findings) on a fixed term contract. The respondent provide services such as audiology to the NHS.[11]The respondent could only obtain a 3 year visa at first instance but subsequently may have had the option to extend it to 5 years in total. He was hired from Pakistan on a two tier visa which means that the role is a shortage occupation. The role was full time with a salary of £35,000 a year. The claimant’s contract of employment stated that he was to begin work on 7 July 2019,( but due to various arrangements the claimant was not able to start till a later date) it went on to say “this is the contract for the next three years no previous employment …” The contract did not specify when it was to end. The claimant does not bring any claim in relation to this. The job had to end by the time the claimant’s visa expired but this does not seem to be specified in the contract.[12]There was reference to an employee handbook and a probationary period of three months, the salary was £35,000 payable each month. There was a section on deductions which said:- * “the company reserves the right to require you to repay to the company by deduction from your pay any fines, penalties or losses sustained during your employment and which were caused through your conduct, carelessness, negligent or recklessness or through your breach of company rules or any dishonesty on your part”. * Any damages, expenses or any money paid or payable by the company to any third party for any act or omissions by you for which the company may be deemed vicariously liable on your behalf. * Cost of personal telephone calls. * On termination of your employment any holiday pay paid to you in respect of holidays granted in excess of your accrued entitlement. * Any other sums owed to the company by you including but not limited to any other payment of wages, outstanding loans or advances or relocation expenses. * Any deductions otherwise entitled under this contract. * Where you have entered a separate agreement with the company any outstanding costs detailed in that agreement. You authorise the company to make any such deductions from any and all monies owing to you by the company”.[13]There was also a section on time recordings saying that there was the requirement to sign in at the beginning and end of each working day, and that the holiday year at paragraph 14 ran from 1 January to 31 December, the entitlement was 5.6 weeks per year.[14]It stated the company may require an employee to take any outstanding holidays without advance notice and/or within a period of garden leave or during any notice of termination of employment. It did not say anything about carrying over holiday although there was a reference at that point to the employee handbook but the claimant said his version of the handbook did not say this.[15]It stated at paragraph 17 “you are entitled to receive the following written notice of termination of employment from the company, from the end of the probationary period but less than nine years continuous service was one month.[16]The contract also provided for short time working or lay off.[17]This had been signed by the claimant on 18 July 2019 and then signed also on behalf of the respondent by Huma Ahmed[18]The claimant was also given an indemnity bond to sign whereby if he breached the contract he was required to pay a certain amount. This stated “if I leave my employment without completing the full term the company may claim an amount equal to four months salary amounting to £15,000 in case I do not serve the notice period of one month and an amount equal to three months salary amounting to £8,750 in case I serve my notice period”. It stated that the amounts would be payable if he terminated the employment of his own volition or he was found guilty of misconduct. It went on to say “I also agree and accept that if I am found in breach of the employment contract I will deem to have misconducted myself and the company will be free to claim the bond amount from the final adjustment including payment for outstanding salaries, provident bond, bonuses etc”. It went on to say “I also agree that if I terminate the employment I will have to pay the amount of £15,000 for the cost of my one month’s accommodation from the company for the initial and complete training costs”. This £15,000 was also a penalty if he went on to work for a rival. This was signed by the claimant but not by the company.-[19]On 21 August 2019 Dr Ehsan who was the CEO of the respondent wrote a letter for the use of the British Embassy Pakistan, but directed to the claimant said:- “I am writing to confirm my offer of a position of Business Developer Manager at Mediscan Diagnostic Services Limited. The hours will be 37.5 per week. The position is offered subject to satisfactory reference and pre-employment checks and completion of the three months probationary period during which your performance will be reviewed. This is a permanent position will therefore be entailed to all staff benefits and the starting date will be around 15 September …[20]A further letter was drafted on 25 October 2021 by Mr Usman said “Abdullah Ishfaq is employed in the capacity of Business Develop Manager as a full time employee on a permanent contract by Mediscan Diagnostic Services Limited. He began his employment with Mediscan on 27 September 2019, Mediscan is a sponsor of his Tier 2 visa expiring in June 2022. We will continue to sponsor him in future too … his current salary before deductions … is £35,000 per annum …” .[21]Upon beginning work the claimant says that he started receiving messages from the finance department asking him to return a certain amount from his salary. He enquired what this was for and he was told it was the bond for his training and he had to pay the amount to keep his training up to date. He says that Dr Noman Ehsan said to pay the money or else his visa would be cancelled. He made some initial payments, the respondent denies this and Mr Usman gave evidence that he lent the claimant some money and the repayments were to pay him back for this.[22]It was the claimant’s belief that the respondent were bringing employees in on a Tier 2 visa on £35,000 a year which was the legal requirement but actually paying them only £25,000 per year because of demanding this amount of money back. He says he made regular payments to Mr Usman of which there was evidence in the bundle. He was being continually reminded to pay and being provided with figures. The claimant provided a screenshot of the account details of Mr Usman from an actual card, he then asked” for the account holder name please” and then he says “Usman Bhai I am going to the nearest branch to transfer they hold my transaction I call online nobody picking up I am in a queue for last eight minutes so I am going Halifax branch near One”, reply “thanks buddy”. There was then an exchange that wasn’t too clear but the claimant appears to ask the account name again and Mr Usman replies “me Usman”. Then there is a further exchange from 4 August 2020 “Dear you need to get your balance up to date its getting up” with a reply “sorted” and there was then a reply “great with about ten eee’s and thanks Lay Lay, I’ll see you in the morning”.[23]On 3 June Mr Usman stated to the claimant “your balance is £3,915, the claimant then asked Mr Usman if he would send an Excel list to him which he did which was in a text message but the claimant provided a better copy and that was setting out payments and what was still owed. It actually said salary adjustment versus actual work done and salary adjustment, entertainment and car allowance and then a £1,000 and it just said from 5/11/2020 with Usman and on 3/1/2020 said “£2,000 paid in account”. On 26 April the claimant had replied to Mr Usman “don’t worry about that I know it is not your mistake you are doing your job I have found something we have to fight our own war and that is why I am not relying on anyone if I am not taken a stand for myself then I cannot take a stand for anyone. Last but not least it is enough I can’t live my life as a modern slave because this modern slave gives me mental and financial stress which I discussed with everyone in the office from time to time while I know it is life and I have to fight for my rights.[24]Mr Usman also said the money was lent so that the claimant could buy a car but no evidence was brought regarding this, for example text messages or a bank statement to show when and how the money had been paid to the claimant or even to the seller of the car. Further the respondent is a limited company and would not be lending workers money without proper documentation. As a result of all these factors I do not accept this evidence give the lack of any corroboration.[25]The claimant provided a list of the payments that he said he had made to Mr Usman on 31 January 2020 there was clearly a testing payment of £1, following that 31 January £500 twice, 3 February £499 and £500, 5 November £1,000, 3 June 2021 £1,000, 9 June 2021 cash payment £1,200, 18 June 2021 £2,500 cash payment to Mr Usman, 2 March 2022 £700 bank transfer to Mr Usman, 4 April 2022 £1,000 bank transfer to Mr Usman, 5 April 2022 cash payment to Mr Usman[26]There was an email from Mrs Noman about him needing to pay the respondent, there was also an exchange with Mrs Arum Noman 14 November 2022 “please reply me”, 16 November Mrs Noman “please reply if you don’t want to pay like your wage balance which liable to pay”, and then “I tried to speak him regarding this matter, he told me if its about Irrum Baji he doesn’t want to speak to me for it, he says Irrum Baji is his Dain Daar hereafter life and not understand what he is means, he just reply is he pay or not”.[27]In addition one of the respondent’s witnesses Ms Yasneen said she received a personal loan from the company which was paid back through her salary. Ms Ahmed also said she had employees complaining about this issue but she did not have the time to investigate. Mr Shafiq stated he was told he had to pay money back but he refused to do so .[28]My finding is that this was a requirement from the company and not a personal loan from Mr Usman. I find this because I find the claimant’s evidence more convincing in this respect because of the formal way in which the money was requested and deducted and because in addition Mrs Noman also asked the claimant to pay. In addition the other witnesses provided collaboration in particular Ms Yasneen’s evidence suggested if there was a personal loan it would be deducted from salary at source. Even so there was no evidence in the bundle regarding her receiving a company loan..[29]In June 2021 the respondent’s business was suspended by the Care Quality Commission (CQC) due to practice issues. The respondent was also suspended a second time in August 2021, this suspension went on until August 2022 although new contracts only started to come though in October 2022. date. Mr Usman and Mr Noman and other witnesses gave evidence that during this period Mr Noman had constantly advised the workers they should find other jobs as there was no work for them. The evidence was a number of workers left and specific evidence about this by Dr Tabassium.. The respondent did not provide any written evidence of this.[30]One of the claimant’s witnesses Mr Shafiq was made redundant in October 2020. However, Dr Noman evidence was that he was actually dismissed for constantly being late and being absent without permission. However the paperwork showed he had been made redundant. As he was terminated in 2020 I find his situation does not have any relevance to the claimant’s.[31]The claimant also produced a letter from 30 March 2022 which was the basis of his argument that he was made permanent by the respondent, this was on headed note paper, it was stamped with the respondent’s stamp and appeared to be signed by Mr Usman, Mr Usman at all times denied that he had agreed to this letter although he had seen it, Mr Usman’s evidence was that the claimant wanted this letter in order to get a mortgage and in order to assist him in bringing his parents over to the UK.[32]This letter said:- “This letter is to confirm that Mr Mohammed Abdullah Isfaq is employed in a capacity of Business Development Manager as a full time employee on a permanent contract by Mediscan Diagnostic Services Limited. He has begun his employment with Mediscan on 27 September 2019, Mediscan is a sponsor of his Tier 2 expiring in June 2022. We will continue to sponsor him in future too. His total working hours are 37 ½ hours per week 5 days a week. His current salary before deductions of tax and national insurance is £35,000 per annum, all the pay slips are issued original from the office. If any further information or reference for Mr Mohammed Abdullah Isfaq is required please contact HR Department, Mediscan Diagnostic Services Limited”[33]Mr Usman stated that the claimant was not in the office on that day so he could not have given him the letter, there was considerable argument about whether the claimant was in the office that day or not and the claimant supported his claim that he was by reference to whats app messages where he said he would be in that day to cover.[34]I find the claimant was in that day. However, the issue was whether or not the claimant had been given a permanent contract. My finding is that at no time was the claimant given a permanent contract as would be understood in British law. I find this because had the respondent wished to change the contract they would have issue a new contract or a written amendment with both parties to sign and this did not happen ( i.e.the procedure outlined in the extant contract). Further the respondent knew it could not extend the claimant’s employment without extending his visa and his visa never was extended. There I do not need to make a finding on whether this letter was genuine or not or whether both parties were gilding the lily with this letter for unrelated purposes as the issue is whether the claimant was made permanent before the ending of his fixed tern contract. This is relevant to whether the respondent needed to go through a consultation process with the claimant, whether it was a fair dismissal and whether they needed to give the claimant notice. I address those issues in conclusions below.[35]The claimant also raised the issue of what happened during Covid as he said although he was furloughed he was made to work during this period until July 2021, even moving to Lincoln and continuously traveling between Lincoln and Nottingham and Manchester where he lived. He was told that his furlough payment was being made up to 100% using his holidays but at the same time he was working and he was confused as to whether he would be getting any holidays or not or whether this was lawful to use his holidays. He says he was also asked to move to the Wirral but as his wife was expecting a baby in May 2022 he did not move there but he did travel there[36]Re holidays The claimant did not address this issue in detail in his witness statement as referred to above but explained in tribunal that his case was he had agreed holidays but then was working so did not take them. He was cross examined in detail on this. The claimant stated that it was agreed on 8 August 2021 that he had 36 days outstanding and that he could take he could take the following holidays: 18 days holiday in August and 18 days in September . There was a whats app exchange which confirmed this .and an email of the same day with HR . The issue then was whether he had taken these holidays as he was in any event on furlough during this period. The claimant said he worked during furlough so that the holidays were not true holidays. The claimant did not raise this at the time. The claimant produced whatsapp messages from August showing that he was working in these months including actually attending the office. The claimant claimed another 5 days for 2022 but he did not take those either. He just took time off for paternity leave in May. but he was not paid for them. There were a number of pay slips which included holiday pay but often along with furlough pay. So on 31/8/21 he was paid £673.13 holiday pay referred to as 37.50 hours ,ie one week ( note 18 days had notionally been agreed) plus a furlough payment of £ 2247.73. On the 30/9/22 he was paid £269.00 holidays representing 15 hours (again 18 days had been agreed) this was alongside a furlough payment of £2175.23. In the light of the fact that the claimant’s messages and emails support his claim and that the payslips do not accord with the agreed holiday I find that the claimant was working and did not take holiday during the period. In respect of the 5 days the claimant was paid 5 days in May 2022 however this was described as notice pay. I am not prepared to accept this was really holiday pay given the description on the pay slip. There was an argument that the claimant was allowed to not attend work in March 2022 in order to find an alternative job. However there was reference to some days working in March in a email from the claimant and also it was not clear if the respondent was treating this as holiday or were giving the claimant paid time off. The claimant’s position was he worked in March which is why he was paid full pay. The pay slip showed the claimant being paid normally. Accordingly I find the claimant did not take holiday in March. Child Care[37]The claimant’s claim was that he was employed to pick up Dr and Mrs Noman’s children from school and taking them to football. He says he was promised he would be paid £500 a month and he stated he did this from October 2021 to May 2022 but he was never asked for the payment and then his employment was terminated. The respondent did not call Mrs Noman to say whether or not there had been such an arrangement, Dr Noman denied it The nanny gave evidence however her evidence was not decisive on this point . There was certainly text evidence that he did collect and pick up Mrs Noman’s children so I accept this. however the question is whether that was an arrangement with the respondent. This will be dealt with in conclusions.. Paternity leave[38]The claimant went on paternity leave from 3 May to 17 May. On 3 May the claimant had emailed Mr Usman and stated that “hope you are doing well I am happy to inform you that my wife and I have been blessed with a baby boy therefore I request you grant me paternity leave from 3 May as her condition is not good due to her operation (c-section) and she gets off today from hospital, if you have any queries and questions you can contact me anytime, waiting for your kind reply”.[39]On 4 May Mr Usman replied “hope everyone is alright, as requested please take good care of the baby, just let me know when you will be able to resume your duties and I will note down in the records”. There was no request for any further verification at that point in time then subsequently he was asked for either the baby’s birth date or a MatB1. However the respondent knew the birthday and it was put in the alternative accordingly they were changing their position. Later as can be seen from below they stated he should have applied for it 15 weeks in advance.[40]The claimant replied to this email on 9 May , he stated “firstly as we discussed in the office I am applying for paternity leave for two weeks until 17 May and will be back in the office on 18 May, secondly I am still waiting for my last month’s pay as I didn’t receive any money into my bank account, kindly update me, lastly as I mentioned many times and especially in our last meeting on 26 of the month in the office my visa is going to expire on 1 June 2022, kindly update you when you are sending me COS for my new visa application, I am really worried about my last month’s pay and my visa which is giving me mental stress as well as depression because I am not getting any response and I don’t have enough time, waiting for your kind reply”.[41]I noted there was no reference in this email to any letter of 5 May 2022. Notice[42]On the 5 May 2022 there was an unsigned letter just stating from HR Department and purported to confirm that the claimant had had one to one meetings with Dr Ehsan CEO. This letter said:- “Dear Abdullah Note there was no address on this. I trust you to be in fine health and enjoying with the newborn. For your paternity yes office has already acknowledged and replied in the past week (For salary issue I have yet to receive a timesheet for the month of April 2022, would you mind to submit your hours, days you worked in the month of April 2022. For your Visa renewal I am afraid but we are not going to renew your visa as your contract is ending shortly, also please note below the trail and background. After the first suspension from CQC in June 2021 Dr Ehsan CEO made it clear to all staff members about the current state with the company and allowed all staff members to look for the new jobs. On the second suspension August 2021 the CEO again explained the situation and requested to look for alternative options, out of 120+ employees almost 100+ members of staff had joined new businesses. In February 2022 a formal one to one meeting in a formal one to one meeting CEO has confirmed and conveyed the situation and explained that Mediscan might not be able to continue your contract as the company is out of business since June 2021 and not sure if we will continue it. In March 2022 you were given a full month off to utilise your holidays and actively look for jobs or other opportunities, a full month salary was paid into your account. In the last week of April 2022 in a one to one meeting with Dr Noman Ehsan has confirmed and explained to you in my presence that your employment will be ended shortly and consider this as a formal notice. He also explained that your visa will be ended and we will not issue a new visa due to current situations with the company. He reminded you as per previous meetings that you should look for other jobs or visa provided etc as company wouldn’t be able to continue or extend the visa etc.[43]You have been requested to look for other options/jobs which you have told the CEO that you are searching for it since the last suspension. I hope it will make your points clear, I will try my best to further assist in this matter as much as I can any query please feel free to ask”.[44]Mr Usman in cross examination stated that timesheets were only required once the claimant’s manager had left and when he was not physically in the office. There was reference to a signing in system too. The claimant stated he had never provided any details to his manager regards his hours and had never until the end of his employment been asked to provide any. I accept the claimant’s evidence. The respondent provided a copy of ‘Rebecca’s’ timesheet but this was a piece of lined paper just saying 5 and half hours against most days. Without further details this was not of much value to the respondent- it did not say when she worked when she had lunch or when she left. It is not my understanding of a timesheet so did not persuade me, and after all there was only one example, that there was genuinely a system of time recording. Accordingly I find this was a requirement imposed by the respondent without notice after the event .[45]I accept the claimant did not receive this letter in any event as there is no mention of it in his email of 9 May and it is totally implausible the claimant would not have raised the issues in this letter if he had seen it in that email.[46]A letter of 10 May 2022 reiterated the points of 5 May 2022 however the email attachment suggested it was sent later but not to the claimant. I find this letter was not sent to the claimant . Again as the claimant was quick to reply to correspondence it is implausible he would not have challenged this immediately. As the respondent knew the claimant was stating he had not received these letters they could have provided the properties before the hearing or even during it to show the letters were sent and created at the relevant time.[47]A letter of 19 May 2022 stated:- “Dear Mohammed Abdul Isfaq It is with regret that due to the expiry of your visa (expiring shortly) the company must notify you that you are being laid off in accordance with your contract with effect from 20 May 2022, entitlement to statutory guarantee pay will be in accordance with the statutory provisions, SGP is payable in respect of a maximum of five working days in any rolling period of three calendar months, employees who normally work fewer than five days per week will be entitled to correspondingly fewer days SGP. We would like to assure you you have not been dismissed but that you are required to continue to make yourself available for work should we contact you to advise you that work is available. We are doing everything we possibly can to rectify the situation and will keep you informed of developments and notify you as soon as you are required to return to work. As you may be entitled to benefits this letter should be taken to the benefits agency as proof that you have been laid off. If you have any queries about the contents of this letter please contact me” I do accept that the claimant was never sent this letter either on 19 May as if he had I cannot see that there would have been any need for the letter of 24 May. Neither was there any reference to the letters of the 5 or 19 May in any of the claimant’s emails, he simply referred to previous emails from Mr Usman which have been referred to above[48]The claimant rejoined the office on 18 May and on 19 May whilst he was working says he was told to go home and not provided with a reason.[49]On 24 May he received an email with the termination of his contract, refusal of visa extension, he wrote querying this and Mr Usman replied on 26 May . This said:- “Dear Mohammed It is with regret that due to the expiry of your visa the company must notify you that you are being laid off in accordance with your contract with effect from today, 24 May 2022, entitlement to statutory guarantee pay will be in accordance with statutory provisions, SGP is payable in respect of a maximum of five workless days in any rolling period of three calendar months. Employees who normally work fewer than five days a week will be entitled to correspondingly fewer SGP. As you may be entitled to benefits this letter should be taken to benefits agencies as proof you have been laid off” The claimant accepted he had received this letter[50]The claimant replied on the same day. He said the company had behaved unprofessionally “my visa is expiring on 7 June 2022 and you are notifying me just today with one week’s notice. Firstly, despite the meetings I have never received any formal written notice of the ending of my employment with Mediscan, instead I have received confirmation of my employment letter on 30 March 2022 attached (mentioned earlier) in which it is clearly been mentioned that the company will continue to sponsor me even after June 2022. Now you are giving just one week’s notice of not continuing my sponsorship. Secondly, my contracted hours are 9 till 5 and on the 14 April Dr Noman asked me not to come in the office until 19 April 2022, I did not take holidays so I am entitled to receive my full monthly wage for April. Just to clarify I have been working five days a week until 19 May when I joined after my paternity leave and I was asked to go home until further notice without any reason and received no written confirmation. I am entitled to receive my paternity and full wage for May 2022. I have neither received any letter on me being laid off nor received the end date for it, kindly make it clear as my understanding is you cannot mix a notice period with laid off leave, even during the furlough period I was asked to use my holidays with the HR Manager but I have never been laid off or put on short term by the company”. I have accepted that until this point the claimant did not know of any lay off.[51]On 26 May 2022 Mr Usman wrote to him requesting time sheets and along with details of the paternity period request, he then said “would you mind confirming your baby’s due date, born date or MAT B1 form so that I can forward this to the payroll administrator”. He did not say that the claimant had to provide a MAT B1, it was in the alternative. The claimant replied that the child was born on 1st May as previously informed, there was no requirement to send a MatB1 form, that he worked 9-5 and he had not taken any holidays. He asked for an urgent reply regarding his visa as it was due to expire on 2nd June. He followed this up on 30 May and advised he would have to go to ACAS and the tribunal if they did not reply.[52]Mr Usman sent a letter to the claimant on 31 May 2022:- “please find below letter detailing answers to your questions. For April 2022 wage you were requested to provide your timesheet for the month like other staff do in the office, being a marketing staff member your marketing lead used to submit hours, extra hours or holidays etc on behalf of the team. As you are the only one working the marketing team you were told to submit the time sheet which you didn’t but all other staff members are submitting. Per your claim that you have been sent home by Dr Noman I checked and he doesn’t agree as there isn’t any such instruction but you took days off due to your wife’s condition as baby due date was the start of the fourth week of April 2022, hence the time sheet was required. For the May 2022 salary and your paternity pay it is a legal requirement to submit form SC3 at least fifteen weeks before the due date which you didn’t, you were required to submit your timesheet for May 2022 and a document/proof so it can be submitted to HMRC while applying for your paternity leave but you couldn’t send any. I have sent instructions for your paternity pay to be applied. For the attached letter referring to job confirmation it was issued at your request as you applied for the mortgage and the bank needed to confirm that your employment history etc. No lay off or termination was decided until that day but to give you enough options to look for alternative jobs and visas you were told on many occasions that Mediscan might not be able to renew the visa due to suspension. Since November 2021 to May 2022 being the marketing manager you were unable to bring any business to the table which you were supposed to hence no business activity so far till May 2022. Mediscan is left with no choice but not to renew the visa. In the previous email you were told about your lay off period start date and an explanation about your due holidays for 2022, you requested a full month off time so you could look for alternative work activity which was granted. You said that you were applying and getting interviews etc and you were paid a full month salary in March 2022 in lieu of your holidays for 2022….” Redundancy/ end of fixed term contract .[53]The respondent claimed that the claimant had been advised many times that he needed to find another job as there was no or little work due to the CQC suspension. The respondent’s evidence through Mr Usman and Dr Noman was that Dr Noman told staff in June 2021 they needed to find other jobs due to the CQC suspension. Dr Noman had an Eid lunch on 28 July where he said he talked to all staff about needing to find new jobs. Dr Tabassium confirmed this was the case. The claimant agreed he was there but never heard any speech to that effect[54]The witnesses also said that 2 face to face meetings were held with the claimant in February 2022 and on 26 April 2022 to advise the claimant they would not be renewing his visa, that the fixed term contract would not be renewed and he needed to find another job with visa sponsorship . The claimant denied any such meetings had taken place. There were no minutes whatsoever of these meetings neither was there any evidence of an invitation to a meeting by email or text. However the claimant did refer in an email of 9 May 2022 to a meeting on 26 April 2022 however he referred to the fact he was asking what was happening with his visa extension and he does not say he was told at that meeting that he was not getting an extension. On the balance of probabilities I do not accept that formal meetings were held as suggested and as far as there was a meeting on 26th April the respondent did not tell the claimant he would not be getting an extension.. These meeting were referred to in the letters which I have found the claimant did not receive.[55]The claimant however did refer to meeting Dr Noman by accident and being told by him that he would not be renewing his visa. There are whatsapp messages to Mrs Noman where the claimant relates this on 11 April 2022.he says Dr Noman says he he is not going to give him an extension for his visa and he ‘is not going to give him the favour of a visa as everyone uses him’. The claimant says he is trying to find a job but no one is offering him a job with a visa. Mrs Noman replied ‘ don’t worry try to convince him you cant go back because of your family …” This shows that something was said but the date does not accord with any of the suggested one to one meetings in any event. The claimant expanded in cross examination and said that he had met Dr Noman in the bathroom and he had told him this . Dr Noman said this was ridiculous but I accept a casual meeting took place and the claimant was told this. He hoped Mrs Noman would intercede heard no more about it till 24 May 2022.(i) However, there is evidence in that whatsapp message that the claimant was trying to find other work so he did know with the CQC suspension there was little work.(ii) The claimant had argued that other people had been taken on but the respondent explained they brought in consultants and kept in key staff who could support them to gain back their accreditation. the respondent did not supply any employment/consultancy contracts to support this. However it was logically plausible in the dire situation the respondent found itself in after the CQC suspension a consequently I accept that there was no role for the claimant at the time his FTC expired.(iii) The claimant argued that people in his situation were made redundant but this was Mr Shafiq and that had occurred 2 years previously when circumstances were different. In any event from Dr Noman’s evidence that he was unreliable it appears the redundancy may have been window dressing. Miscelleaneous[56]The claimant claimed that the following documents were either not received or inauthentic as follows: Page 60 to 69 was signed by the HR Manager but she gave evidence she didn’t sign them. Email from 6 April 2022 from himself to the Office Manager he did not send, this was using his email in his absence. Letter of 5/5/2022 page 81. Letter of 10 May 2022 page 167. Letter of 19 May 2022 page 84. Employee Handbook pages 227 to 237. The claimant stated he was provided with an old version when he joined Mediscan which was pages 274 to 353.[57]The claimant also opined that Mr Usman should have provided bank statements as these would show that other staff members were paying him and would support the claimant’s case that this was not a loan but was a practice by the business. These were not ordered as the claimant only requested these in his witness statement however the respondent did not produce them voluntarily either. The Law Non-renewable and limited term contractThe Law
[58]The termination of a limited term contract without renewal is deemed to be a dismissal by virtue of Section 95(1)(b) of the Employment Rights Act. Therefore there is a liability on the part of employers in the same way as if they had actively ended the contracts. It is in dispute in this case whether the claimant was ever made permanent but a contract of employment is limited if:-(i) The employment of the contract is not intended to be permanent; and(ii) The provisions accordingly made in the contract for it to terminate by virtue of a limiting event such as in the case of a contract for a fixed term the expiry of the term. This is the relevant provision in this case.[59]The expiry of a limited term contract without renewal amounts to a dismissal even if the employee knew at the outset would not be renewed or that it was unlikely that it would be renewed, Nottinghamshire County Council -v- Lee 1980 Court of Appeal.[60]It appears that this section does not apply however if the termination was by mutual consent. A fixed term contract is still a limited term contract even if it can be brought to an end by a notice before the limiting event. But for a provision for a three year fixed term contract they can be terminated on the three months’ notice does not change its character although I note that was not argued here.[61]As the fixed term contract with a defined date of expiry no notice needs to be given of its end date, statutory notice rights do not apply either because the end date is fixed in advance and there is no need to warn the employee when the job will end, therefore as in this case where there is a three year fixed term contract the individual does not acquire the normal statutory rights to three weeks’ notice or notice pay. Covid Regulations in relation to holidays[62]The Working Time (Coronavirus) Amendment Regulations 2020 were introduced in order to ensure that workers for whom it was not reasonably practicable to take holiday due to the Coronavirus situation could carry their holiday into the following two leave years. Four weeks holiday could be carried forward and it was only for the following two years i..e. 2021 and 2022. An employer is required to entitle a worker to take annual leave whilst they are on furlough. In respect of annual leave the worker is entitled to the full amount of pay during annual leave even if the furlough amount is not 100%. One would expect that where a worker takes holiday during furlough their pay slip would show up as partly furlough and partly holiday pay. If of course they were not taking annual leave at that time the furlough pay could not be topped up with a proportion of holiday pay due overall. SOSR[63]The respondent here claimed that the reason for the dismissal was some other substantial reason according to the case management minutes of December 2022. The expiry of a limited term contract is not in itself a potentially fair reason for dismissal, the employer must still establish that the expiry falls within one of the potentially fair reasons set out in 98 (1) and (2). The most commonly adduced in such circumstances being SOSR and redundancy. Where redundancy is not applicable the EAT stated that the expiry of a fixed term contract could be SOSR for dismissal but it was still up to the employer to show what the reason was and establish that it was substantial. Terry -v- East Sussex County Council 1976 EAT. It is not the case that the expiry of a limited term contract was automatically SOSR.[64]In Faye -v- North Yorkshire County Council 1986 Court of Appeal the Court of Appeal stated a limited term contract expiry can amount to SOSR where the contract was adopted for a genuine purpose which was known to the employee and the purpose ceased to be applicable. In that case the fixed term contracts were for covering a period of temporary absence and the post was eventually filled permanently, the short term contract was not renewed.[65]Once a fair reason has been established the Tribunal must decide whether the dismissal was fair or unfair. Failure to look for suitable alternative employment would be a reason whereby a SOSR dismissal was unfair. In Rochdale Metropolitan Borough Council v Jentus EAT 2001 a temporary employee was repeatedly re-engaged on a series of one month contracts but the respondent failed to consider whether suitable temporary work was available in another department where a permanent position is created to replace a temporary post an employee may for example be expected to help the temporary incumbent to apply for the post but obviously needn’t guarantee them it.[66]The fixed term employee’s Prevention of Less Favourable Treatment Regulations 2002 give employees on limited term contracts the right to be informed by their employers of all available vacancies within the establishment in which they work. A failure by an employee to comply with his duty may be a factor in consideration of the fairness of any dismissal.[67]I was not referred to any caselaw by the parties. Unlawful Deduction of Wages[68]Section 13(1) of the Employment Rights Act 1996 states that a worker has the right not to suffer unauthorised deductions, a deduction is defined as follows, 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 … as a deduction made by the employer from the worker’s wage on that occasion, Section 13(3). In order to ascertain what is properly payable it must be established what the contractual obligations were between the parties, the approach to be taken is that adopted by the Civil Courts in contract actions, the Tribunal must decide an ordinary principles on common law and contract the total amount of wages that were properly payable to the worker on the relevant occasion and whether any provision of the contract which allowed the deduction.[69]In addition of course the employer has to ensure that they have obtained the employee’s written consent to the actual deduction and that unless a deduction is required or authorised by virtue of a statutory provision the worker must have previously signified in writing his or her agreement to the deduction. In this case there were references in the claimant’s contract which he had signed to the provisions of making deductions, or if not anything specific in writing that is a relevant provision of the worker’s contract, again that is the case here although the actual contract showed provisions should be scrutinised to ensure they cover the actual deduction. Notice Pay[70]The question here is whether the respondents were required to give notice to the claimant given that he was on a fixed term contract (if the findings are to that effect). The actual contract of employment made provision for giving notice in writing. Submissions - Respondent[71]The claimant’s fixed term contract came to an end when his work visa ended on 31 May 2022 as he was not entitled to work.[72]There was no need to give notice to the claimant as the contract was a fixed term contract.[73]The claimant was given notice in any event, his message to Mrs Nouman showed that he had had been told this by Dr Nouman.[74]In respect of the non-renewal of the fixed term contract there was no work at the time due to the respondent having been suspended by the CQC, the respondent was working towards obtaining its right to operate again and the only people that it retained were workers essential to that and consultants that would help them achieve that. They had on numerous occasions told staff to obtain alternative employment and many staff had obtained alternative employment.[75]Regarding paternity leave the claimant was asked to provide a MAT B1 but he never did so. He certainly didn’t make an application on the SC3 (?). Wages payments[76]The claimant was required to submit time sheets after his manager left. He failed to do so when first required, the respondent did not query this until he started working more from home and more spasmodically, he was told that time sheets were required for April and May but he never provided them.[77]The respondent laid off the claimant and therefore he was paid the statutory payment for May and there was no obligation to pay him any other payment in May. Childcare payments[78]If there was an agreement to this effect this was not part of the claimant’s contract with the respondent but a personal arrangement with Mrs Nouman. Holiday Pay[79]The claimant received furlough payment and holiday pay and payments for his holidays were made with his furlough payment. It is clear from the employment handbook that a holiday is not carried over Claimant’s Submissions[80]He was not given notice, he denies that he had any proper meetings with Dr Nouman where he was given notice, he was certainly not given written notice, the contract says he should be given written notice and that should apply irrespective of whether it was a fixed term contract or not. The letter of 30 March stated that he was being put on a permanent contract, he was in the office on 30 March. Holiday Pay[81]There was a text exchange where it was agreed that he could take holidays 36 days 18 days in August and 18 days in September 2012 but that he worked through out so was unable to take those holidays. In 2022 he claimed 5 days he did not receive payment for those.. Bond money[82]In respect of the bond money he did not know Mr Usman, why would he lend him money, he was demanding the money because either the respondent wanted to cover any costs upfront and not wait till the claimant breached his contract or because the respondent did not want to actually pay people £35,000 a year which they were obliged to do and demanded the money in order to reduce the actual wages paid. He also relies on the text message fwhere Mrs Nouman refers to paying the money back.[83]Regarding paying for picking up the children why would he do this in his working hours unless he had permission from the respondent to do so. Accordingly this was part of his work and he says he was promised an extra amount for doing this which he was never paid. Dr Noman whose children he picked up was a director of the respondent and he always believed it was part of his salary arrangements.[84]The claimant says it was a redundancy, noting Mr Rizman was actually made redundant[85]In respect of paternity pay Mr Usman just asked him to let him know when he was going on leave and when he would come back and then he changed the parameters of entitlement after the event. He was not required to do anything to get the paternity payment. Conclusions Unlawful deduction of wages (iv) Childcare PaymentsConclusions
[86]I find this was a private arrangement between the claimant and Mrs Noman and not part of his role with the respondent whether or not they gave him time off. I accept from the text messages and from Ms Begums evidence that the claimant did provide childcare assistance to Mrs Noman. (v) Paternity Pay[87]The claimant was not asked to provide a MatB1 form per se. He was initially advised just to let Mr Usman know when he was coming back to work then he was told to confirm the baby’s birth date or Matb1 form. The claimant had provided the birthdate so under the terms proposed by the respondent he had complied.[88]Accordingly he was entitled to the paternity leave payment. If the respondent could not claim anything back without the Mat B1 form (which they did not argue) that is a matter from them. (vi) Holiday Pay[89]I have found that the claimant was unable to take holiday in 2021 as he was working and that a five day payment in 2022 was described as notice pay not holiday.[90]The claimant was entitled under the Covid regulations to carry over his holidays into 2022.Accordingly the claimant is entitled to outstanding holiday pay.[91]As the evidence was unsatisfactory in respect of when the claimant did and did not work in August/September 2021 I make no award as to the exact amount of holiday pay owed and will consider this at a remedy hearing in respect of which further orders will be made. (iv) Wages[92]The respondent’s case was that the claimant did not provide timesheets as required and that was the reason for not paying him in April and May. They had argued that his manager had previously submitted them but now he had left the claimant was required to fill these in which he did not . I have made my findings above and as I have found this was not a plausible reason the claimant was entitled to be paid for those months. (vii) Bond deductions[93]There was no requirement on the claimant to pay the respondent anything in relation to the bond as he did not breach the contract there was no requirement to pay anything in relation to the bind. What I have found is that the respondent demanded and the claimant paid various payments which I have found were not for any loan .I have accepted the claimant’s evidence on this point as referred to above .the respondent could have settled this point by providing evidence of a personal loan or a company loan to the claimant but it did not do so .Accordingly the claimant is entitled to recovery of this money.[94]Again the exact amount deducted will be considered at the remedy hearing Notice Payment[95]As I have found the claimant was not offered a permanent contract he was still on a fixed term contract. Notice is not required for a fixed term contract by statute. However the respondent agreed an employment contract with the claimant which did agree to provide a notice period even though it was said to be a fixed term contract. I find that the employment contract supersedes the statutory provision giving the claimant a better term than the statute and accordingly the respondent should have given notice to the claimant in writing as required by the contract. The respondent did not do so accordingly they owe the claimant the notice pay under the contract.[96]The payment described as notice pay may be able to be set off against the notice payment due. Again this will be considered at a remedy hearing. Unfair Dismissal (viii) The claimant’s redundancy case was based on having been made permanent. I have found he was not made permanent. The respondent have simply said in relation to the SOSR that there were no jobs at the relevant time due to the CQC suspending the business. Hence the claimant being laid off. There was evidence that I accept that other staff had been told that they needed to find other jobs due to the suspension whist not notice or consultation it was corroborative of a reduction in the number of workers needed and the lack of alternative posts. (ix) The respondent barely followed any process in relation to the ending of the claimant’s fixed term contract as I have found the only meeting with him was the ‘bathroom meeting’ with Dr Noman and more general warnings. Whilst this would normally make the dismissal procedurally unfair the respondent had made the claimant aware his contract would not be renewed and in the dire circumstances of the CQC suspension this is sufficient (x) If I am wrong and it was procedurally unfair I suggest it would be a 100% Polkey ( Polkey vs AE Dayton Services ltd 1987 HL ) case as I have found there was no other work available but I cannot make a definitive finding on this as it was not a matter I heard any submissions on.Conclusions
[1]After hearing further evidence today I find that the claimant’s claim for holiday pay, for 2021 fails and is dismissed.[2]The claimant having succeeded in his claims of unlawful deduction of wages, failure to pay holiday pay, failure to pay notice pay and failure to pay paternity pay by a Judgment dated 9 January 2025 I award the claimant and order the respondent to pay as follows:(i) Unlawful deduction of wagesa. Unpaid wages for April and May 2022 £ 4,375.00b. Paternity pay for 3 to 17 May 2022 £ 374.36c. payments from the claimant to Mr Usman,both electronic and cash £11,400.00(ii) Notice pay (£2,916.67 less £150 already paid) £ 2,766.67(iii) Holiday pay for 8.33 days in 2022 at £134.62 a day £ 1,121.38 TOTAL AWARD £20,037.05