Mr SJ Hollis v MicroProducts Systems Ltd: 2409299/2020

EMPLOYMENT TRIBUNALS

Case No 2409299/2020

Between

Mr SJ HollisClaimant

MicroProducts Systems LimitedRespondent

Before

Employment Judge Holmes

Written representations for claimant

Written representations for respondent

Date 18 July 2022

JUDGMENT

[1]The claimant’s claim of breach of contract (for notice pay) is struck out pursuant to rule 37(1)(e) on the grounds that a fair hearing of that claim is not possible;

[2]Unless the respondent by 8 August 2022 shows cause why it should not be, the respondent’s contract claim against the claimant is struck out pursuant to rule 37(1)(e) on the grounds that a fair hearing of that claim is not possible;

[3]The claimant’s claim of unlawful deductions from wages in respect of non – payment of wages for April 2020 is well founded and succeeds. The Tribunal makes the following award: Unlawful deduction of wages – April 2020 9 days @ £57.14 net = £514.26 This is a net sum, and is to be paid by the respondent to the claimant without any deductions for tax and national insurance, for which the respondent must account to HMRC.

[4]The Tribunal proposes to grant the claimant to amend his claims of unlawful deduction from wages in respect of deductions for pension contributions to permit him to claim the higher sum of £558.6. If any objection to that amendment is made, it is to be made by 8 August 2022.

[5]The claimant’s claim of unlawful deduction from wages in respect of deductions for pension contributions is well founded, and succeeds. Case Number: 2409299/2020 Code P 2 of 24

[6]Subject to any objection to the proposed amendment, the Tribunal makes the following award: (ii)Unlawful deductions from wages – pension contributions Total: £558.06 This is a gross sum, from which the respondent is to make the appropriate deductions for tax and national insurance, for which it is to account to HMRC.

[7]The claimant’s claim in respect of failure to make a payment pay in lieu of untaken holiday on termination is well founded , and succeeds. The Tribunal makes the following award: (iii)Holiday pay 3 days @ £57.14 net = £171.42 This is a net sum, and is to be paid by the respondent to the claimant without any deductions for tax and national insurance, for which the respondent must account to HMRC.

[8]At the time that the proceedings were commenced the respondent was in breach of its duty to provide the claimant with a written statement of particulars of employment in accordance with s.1 of the Employment Rights Act 1996, and the Tribunal makes an additional award under s.38 of the Employment Act 2002 of two weeks pay. iv)Additional award – s.38 Employment Act 2002 2 weeks pay @ £365.38 = £730.76

REASONS

[1]A final hearing of these claims, and the respondent’s contract claim , was listed on 16 March 2022. The hearing took place using a remote video platform. Graham Tatlock , the sole Director and owner of the respondent , has MND, which severely restricts his ability to participate in an oral hearing. At a preliminary hearing on 17 December 2021 Employment Judge Horne explored with the parties whether an Intermediary could be utilised to assist Mr Tatlock, and achieve a fair hearing. In the alternative, he made Orders for the preparation of written evidence, with written questions being put to each party’s witnesses. Pursuant to those Orders, Mr Tatlock advised the Tribunal that he did not consider that an Intermediary would provide the solution, and both parties accordingly prepared written questions, and answers, and written submissions , for use at this final hearing.

[2]As observed in the Orders made, however, it was expressly provided that it would be for the Employment Judge conducting the final hearing to determine whether a fair hearing without an Intermediary was possible.

[3]The Case Management Summary prepared for the December 2021 hearing sets out the problems that Mr Tatlock’s disability pose for a fair hearing. The situation was the same in the March hearing, with Mr Tatlock only able , save for one brief phrase, to type “Y” or “N” into the chat facility. He cannot give oral evidence, or cross – examine the claimant or his witness. The last hearing, and the orders made.

[4]Having considered the papers, the representations made by the claimant’s counsel, and such input as Mr Tatlock was able to make , the Employment Judge Case Number: 2409299/2020 Code P 3 of 24 postponed the hearing, and made a number of orders. The first relate to the respondent’s response to two of the claims made, which appeared to the Employment Judge to be difficult for the respondent to resist, and which led him to propose to strike out the response to those claims

[5]The next orders relate to a proposal by the Employment Judge to strike out parts of the claimant’s claims, under rule 37(1)(e), on the grounds that a fair hearing of them was not possible.

[6]The Employment Judge also made orders for both the claimant and the respondent to provide further information. Documents received since the last hearing in compliance with the Tribunal’s orders.

[7]The parties have duly complied with the Tribunal’s orders. By email of 4 April 2022 the Tribunal received from the claimant : His response to the proposal to strike out two of his claims under rule 37(1)(e) His schedule of loss dated 4 April 2022 An email from NEST to the claimant dated 23 March 2022 A copy of the case management orders made on 17 December 2021

[8]On 18 April 2022 the Tribunal received an email from Mr Tatlock, with 11 attachments. of these: Two documents are spreadsheets showing payments made to or on behalf of the claimant , entitled “HOLLIS PENSION” Two are a “chat summary” recording Mr Tatlock’s enquiries with someone at NEST Six are conversations (possibly emails or texts) between Mr Tatlock and Mr Hardy at NEST One is a “Response” document, dated 18 April 2022, running to three pages.

[9]On 7 July 2022 the Tribunal received a further letter from Mr Tatlock, entitled “Pension” , in which further contentions were made about the claimant’s deductions claims.

[10]On 7 July 2020 the claimant’s solicitors sent a further email, setting out the results of their enquiries with NEST in relation to the deductions for pension contributions. This followed the Employment Judge raising with the parties queries as to how the apparent discrepancies between what had been received from the respondent by NEST and what had shown as deductions on his payslips may have arisen.

[11]Further, the Tribunal received a further email on 11 July 2022 from the respondent in relation to the NEST pension deductions claim, a further email on 12 July 2022 from the claimant’ solicitors , dealing with an issue relating to the password for a laptop computer, and another from them on 14 July 2022 , responding to that from the respondent on 11 July 2022.

[12]There was a bundle produced for the March hearing, and any references to page numbers are to pages in that bundle. That bundle contains written questions and answers that the parties have provided to each as their evidence in this case. Mr Tatlock sent to the Tribunal a document , which he describes as his “argument”, Case Number: 2409299/2020 Code P 4 of 24 dated 7 March 2022. This is, in effect , his witness statement, in which he sets out what his evidence to the Tribunal would be. The claimant had submitted a witness statement signed by him on 23 September 2021. The first issue: should any part of the claims be struck out on the grounds that it is not possible to have a fair hearing?

[13]The claimant brings a number of claims in the claim form presented on 27 July 2020.Amongst them are a claim for notice pay, and claims for unlawful deductions from wages. They arise from the termination of his employment on 13 April 2020. There is no issue but that the claimant’s employment was terminated without notice (“with immediate effect” as it was put in the email dismissing him). He was, by the terms of the second contract or statement of terms issued to him on 2 June 2019, entitled to one month’s notice. The deduction from wages claim relates to the last thirteen days of the claimant’s employment, for which he contends he has not been paid, which the respondent admits. The issues in the notice pay claim.

[14]Where, as here, there is an admitted dismissal without notice, the employer has to establish, as a matter of fact and law, that the employee was actually guilty of conduct which entitled the employer to dismiss without notice. Here the respondent relies upon “insubordination”, in the form , largely , of the claimant allegedly failing to devote himself to sales tasks in the run up to his dismissal. This is alleged to be in breach of express oral instructions. There is no written job description or other document which sets out the claimant’s duties in any detail, nor any express written instructions to this effect. It seems that Mr Tatlock will rely upon various discussions with the claimant during the course of his employment. Mr Tatlock, however, is unable to give oral evidence, or to cross examine the claimant. Hence the Tribunal’s orders for written questions and answers, which have been complied with. The issues in the deductions (non – payment for April 2020) claim.

[15]The response submitted by the respondent company (which is unrepresented) is a little unclear, but in the “Defence and Counter – Complaint” document (pages 29 to 30 of the bundle) Mr Tatlock admits not paying the claimant “for April” , having reviewed his work on 10 April 2020, and deciding that he would dismiss him, and not pay him, as he did not believe that he had provided the support which he was employed to do.

[16]The respondent has, in Mr Tatlock’s response to question 89 posed to him by the claimant , admitted that he has not paid the claimant for any days worked in April 2020.

[17]Thus, the respondent admits the non – payment of wages for April 2020, and must therefore justify why the claimant is not entitled to be paid those wages. Its case appears to be that the claimant did no work at all during April 2020, and hence is not entitled to any payment. Is a fair hearing of these claims possible? (i)The notice pay claim.

[18]The Employment Judge previously expressed some strong misgivings whether , given the serious conflict of evidence, which would usually be determined by oral Case Number: 2409299/2020 Code P 5 of 24 evidence and cross – examination by both parties, as to the central issue of whether the claimant did or did not commit an act of gross misconduct, a fair hearing by means of a purely paper hearing is possible. The Tribunal was inevitably going to be asked to determine the reliability, and probably the honesty, of the claimant , and Mr Tatlock , in their evidence solely upon their written accounts. Testing honesty or reliability solely on written evidence is far from easy. In assessing evidence a Tribunal takes into account not only what a witness says in evidence, but the manner in which they say it. Further, cross – examination, or the Tribunal’s questions , can often test the evidence by reference to documents. None of that is possible on purely written evidence. Nor is this a document heavy case where the parties’ oral evidence is unlikely to add much. The converse is the case, there is little or no written evidence upon the crucial issues in dispute.

[19]The Employment Judge was also conscious of the fact that the claimant is legally represented, and has therefore had the benefit of questions, and possibly his own answers, being prepared with legal advice, but the respondent has not. There is not a level playing field. To elaborate, the claimant has posed 159 questions to Mr Tatlock, who has posed some 42 to the claimant . Numbers, of course, are not the sole issue, but not all of the respondent’s questions seem relevant, but , equally, some relevant questions do not seem to have been asked . This is not a criticism , but highlights how the lack of legal representation may be disadvantaging the respondent’s case. The claimant has pointed out that the respondent could choose to be represented as well, but looking at its returns to Companies House, this is a small company with little in the way of assets or income. Further, whilst the claimant may be in a position (possibly by dint of an insurance policy) to incur legal expenses which probably well exceed the potential value of the claims , some £5,500 at best , on the original schedule of loss, there would be a serious question of proportionality for a respondent facing such claims to incur similar , usually non – recoverable, costs in defending them.

[20]The claimant’s solicitors have submitted that the Tribunal should not strike out any of the claims on this basis. They have cited the authorities on this topic such as Osonnaya v South West Essex Primary care Trust [

UKEAT/0629/22

] and Riley v Crown Prosecution Service

[2013] All ER (D) 364

[21]It is rightly submitted that the Tribunal should only exercise this power in extreme circumstances, and should exhaust all other case management options before taking the draconian step of striking out a claim.

[22]It is submitted that the Tribunal has not advanced the possibility of an intermediary, and has not obtained any medical evidence as to the extent of Mr Tatlock’s disability. Reliance is placed upon Mr Tatlock’s ability to articulate himself in written correspondence, which is clearly the case.

[23]The claimant submits that the Tribunal can reach a decision in respect of the contractual claims, on the papers alone. It is said that this is not a discrimination claim, where “oral evidence is critical”.

[24]The respondent is not represented, but that is its choice. It is submitted that the Tribunal can assist the respondent by raising specific questions if there are gaps in the respondent’s response, allowing the respondent to expand on its case, and remove any disadvantage. Case Number: 2409299/2020 Code P 6 of 24

[25]The respondent has said little on this topic, perhaps unsurprisingly, but has stated that Mr Tatlock expected the Tribunal to “cross – examine” the claimant on his behalf. Discussion and rulings on striking out. (i)The notice pay claim.

[26]The Tribunal will consider the issue firstly in relation to the claim for notice pay. The claimant was entitled, without more, to one month’s notice. In order for him to be lawfully dismissed without notice, the respondent must establish, as a matter of fact and law, that it was entitled to dismiss him without notice, and that it did so.

[27]The respondent’s case that it was entitled to do so is based upon its contention that the claimant had been guilty of “insubordination”. That is particularised (as in Mr Tatlock’s answers to written questions and his document of 7 March 2022) as the claimant having been instructed to work on sales 35 hours per week, and not doing so. Alternatively it is contended that the claimant was doing work on a new product that he was not instructed to carry out.

[28]It is appreciated that the claimant may consider it unfair if his claim for notice pay, cannot proceed through no fault of his, but because of the limitations upon the effectiveness of the Tribunal process posed by Mr Tatlock’s disability. That, of course, is also not Mr Tatlock’s fault.

[29]Rule 37(1)(e) however, does not require fault on anyone’s part. If a fair hearing is not possible, the reason why it is not possible is irrelevant. Unlike rule 37(1)(a) there is no requirement for any default or unreasonable conduct to trigger a strike out under this limb of rule 37(1).

[30]The Employment Judge appreciates that just because there may be some unfortunate restrictions upon the fairness of the Tribunal process, that does not mean that no fair hearing is possible. There are degrees of fairness, and some hearings may be fairer than others. The question is whether the Tribunal can, in these circumstances, hold a hearing of this particular claim on purely written evidence , which is sufficiently fair.

[31]Having considered the submissions, the Employment Judge has reluctantly come to the conclusion that the claimant’s breach of contract claim must be struck out as a fair trial of that claim is not possible. Having dismissed the claimant without notice the burden is upon the respondent to show that as a matter of fact and law it was entitled to do so. The respondent contends that the claimant’s conduct was such that it amounted to gross misconduct, and that it was entitled to dismiss, and did dismiss the claimant for that reason. That misconduct is said to be insubordination, i.e the claimant either carrying out no work, or carrying out work which was not the work that the respondent had expressly ordered him to carry out.

[32]The claimant denies this, and there is thus a conflict of evidence about this central issue. Whilst there is some documentation, it is neither side’s case that their dealings were entirely written, and, despite Mr Tatlock’s difficulties in communications, it is clear that he and the claimant did meet, and communicate directly with each other. Mr Tatlock has informed the Tribunal that he uses a text to voice device , and this was doubtless the medium through which the parties had their discussions. It is not, however, a suitable medium for cross – examination. Case Number: 2409299/2020 Code P 7 of 24

[33]The Tribunal cannot see how an effective , and therefore fair trial of these highly contentious issues without oral evidence is going to be possible. Whilst there has been discussion of the possible use of an intermediary, such a person cannot be a substitute witness for Mr Tatlock. They could, as could any representative, cross – examine the claimant (having obtained prior instructions from Mr Tatlock) , but they could not give evidence for him.

[34]As there is a considerable factual issue between the parries as to whether the claimant did act in a manner which amounted to gross misconduct , entitling the respondent to dismiss him, and that issue cannot be fairly resolved without oral evidence, the Employment Judge considers that a fair trial of that claim is not possible.

[35]That does not, of course, mean that the Tribunal must strike it out, it still has a discretion whether or not to do so. In approaching this issue, the Tribunal bears in mind that the notice pay claim is but one element of the claimant’s claims. As will be seen , the Tribunal is not going to strike out any other claims made by the claimant. This is relevant to the proportionality of striking out this element of the claims. Further, unlike discrimination claims, where there is often a wider public interest in having them determined, this claim is a purely private law contractual claim between these two parties, and of no wider public interest.

[36]For those reasons , and with some sympathy for the claimant , the Tribunal does strike out the claimant’s claim for notice pay pursuant to rule 37(1)(e). (ii)The unlawful deductions claim for April 2020.

[37]The Tribunal considers, however, that different considerations apply to this claim. The respondent’s case on this claim appears to be that the claimant either did no work at all in April 2020, or at most 4 hours, or did work he should not have been doing.

[38]Whilst at first blush this may appear to involve similar factual issues as the notice pay claim, this is not in fact so.

[39]The respondent is contending for a negative – the claimant did no work after 24 March 2020. The claimant says that he did, and there is some documentary evidence of some work, although it may be of modest duration in terms of time.

[40]The claimant’s contracts of employment, however, do not , other than to specify that the claimant’s obligation was to work for 35 hours per week , specify what he was to do, or when he was to do it. Certainly there is no link to any required level of sales being achieved, or any particular level of activity during those 35 hours. The nature of a sales role is that , if payment is not to be dependent upon results, a salesperson can do work with nothing to show for it. That does not, of course, mean that they have done no work, merely that it has not successfully generated sales.

[41]In deductions from wages claims a claimant need only show that he was ready willing and able to perform work, or that he actually did so in accordance with the terms of his contract.

[42]The Tribunal does not consider that oral evidence will be as relevant and necessary to this aspect of the claims. Mr Tatlock would be unlikely to be able to say very much to prove a negative, and there is some documentation which will Case Number: 2409299/2020 Code P 8 of 24 assist the Tribunal. By the same token, there is an absence of documentation for April, which does not prove anything one way or another.

[43]Other documentation, and a legal issue, lead the Tribunal to consider that this claim can be heard fairly, despite the limitations, on the papers alone.

[44]The Tribunal will accordingly now go on to consider on their merits the claims for unlawful deductions from wages (i.e the non – payment of April’s pay and the pension contributions issue), the holiday pay claim, and the respondent’s contract claim. The claim for unlawful deductions (i) Failure to pay wages up until the termination date of 13 April 2020.

[45]This is a simple claim. The claimant’s employment ended on 13 April 2020, but he was not paid up until that date. He was paid for March, but, the respondent admits, not paid at all for April 2020.

[46]The respondent’s justification for what would therefore be unlawful deductions from the claimant’s wages is that he did no work after 24 March 2020. In support of this Mr Tatlock cites the Sales report documents that he has supplied to the Tribunal. From these he invites the Tribunal to conclude that the claimant did no work after 24 March 2020, because no such documents for that period have been submitted by the claimant.

[47]The claimant agrees that this (non – supply of a sales report for April) was the case, but this was because of a technical difficulty in submitting the documents. He points, however, to emails which support his evidence that in April 2020 he approached a restaurant at Blackrod, with a view to securing an order for floodlighting, and was in contact with Manchester Airport to secure some business.

[48]The claimant also points out that the Sales reports supplied by the respondent to the Tribunal have been altered by Mr Tatlock , in that the claimant is credited with sales activity as long ago as 2016, when his employment did not commence until 2018. Further, whilst Mr Tatlock has contended that the claimant made no sales to BASF, the claimant has evidenced two sales to that customer at the end of 2019.

[49]The Tribunal accordingly does approach the respondent’s case on non – payment for April with some caution. The burden of proving that the claimant has no entitlement to be paid for April lies upon the respondent, and the Tribunal can see nothing that would persuade it that the claimant did no work at all for the respondent in this period.

[50]Once it is accepted that some work was done, it then becomes necessary, if the respondent is to succeed, for it to demonstrate that the claimant did not work all the hours that he was contracted to work. The Tribunal says “all” because the question then arises as to what the position would be if the claimant only worked a proportion of those contracted hours. Does failure to work each and every one disqualify him from payment for any of them? Unless the employment contract is written in those express terms (which it is not) , that would not be a likely result. In terms of what the claimant did or did not do, all the respondent can do is point to the lack of sales. It cannot show that the claimant was not working at all during this period.

[51]The matter may be considered to be finely balanced, however, until one considers a further factor, which is the termination email sent by Mr Tatlock to the claimant on Case Number: 2409299/2020 Code P 9 of 24 13 April 2020 (page 237). That clearly states that the claimant would be paid up to 10 April 2020, with adjustments for holiday. The respondent did not, however, pay anything, nor, until these proceedings did it raise any issue with the claimant’s entitlement to be up until the date of termination. It has not been suggested that the respondent did not know the position, indeed, that is relied upon by the respondent as the reason for terminating the employment.

[52]Further, assuming for a moment that the respondent was correct in the allegations it sought to make in its contract claim, that would not, it is clear, in law entitle the respondent to withhold his pay. A worker who remains working normally, or is ready and willing to do so , may nonetheless have committed a repudiatory breach of contract, e.g. because he has been defrauding the employer. In those circumstances he is still entitled to be paid until such time as his repudiatory breach is accepted by the employer and the worker is dismissed. Until that time, the contract is still subsisting, there is no failure of consideration and wages are payable. This legal principle was established in Horcal Ltd v Gatland

[1984] IRLR 288

, and Brandeaux Advisers (UK) v Chadwick

[2011] IRLR 224

. In both of these cases the worker's wrongdoing was not discovered until after termination and so they continued to work and be paid normally until their contracts ended. Given they had provided full consideration for their wages, there was no basis on which any part of their salary could be clawed back by the employer. Where an employee's repudiatory conduct is discovered before termination of the contract, case law suggests that the employer should be wary of withholding salary unless there has been a clear failure of consideration. So for example in Item Software v Fassihi

[2004] IRLR 928

, an employee who was paid monthly in arrears was dismissed for misconduct on 26 June and his June salary was subsequently withheld. One of the issues before the Court of Appeal was whether he was entitled to be paid salary right up to his dismissal. The court held that he was. The employee had clearly provided his services throughout the period leading up to dismissal. An employer is therefore taking a risk if he withholds salary in these circumstances.

[53]On a balance of probabilities, therefore , the Tribunal considers that the claimant was entitled to be paid up until the date of termination, i.e 13 April 2020, and in not paying him the respondent made unlawful deductions from his wages. The calculation of the award is set out below. In making it, however, the Tribunal cannot award 13 days pay, as the period in question covers two weekends, and the claimant’s daily rate of pay has been calculated on the basis of a 5 day week. 9 days pay is the appropriate award. The claim for unlawful deductions (ii): Arising from NEST pension contributions.

[54]The Employment Judge does not consider that there is any reason why there cannot be a fair hearing in relation to the claimant’s claim for unlawful deductions from wages in relation to pension contributions. This does not depend upon any oral evidence, and can, as will be seen, be resolved simply on the documents.

[55]It has, however, taken some time and more enquiries to understand these claims, and how they are to be correctly put.

[56]It appeared to be the case that, having obtained details from NEST , his pension provider, there was a shortfall between what sums were being paid to NEST in Case Number: 2409299/2020 Code P 10 of 24 respect of the claimant’s pension contributions, and what sums were being deducted from his salary each month.

[57]The claimant originally put these claims in the sum of £290, recently updated to £295.50.

[58]The claimant has provided details at page 207 of the bundle of this calculation. It is based upon his pay slips , and the NEST documents at pages 204 and 205 . His calculation , however, is based upon an error. In his 4th column “NEST got”, the claimant has used figures from the 3rd column on page 204 of the bundle. That is headed “Amount paid”. The next column, however, shows “HMRC Tax Relief”. The table on page 205, however, shows the actual sums paid by the respondent each month. The “Amount paid” figure is always the product of the actual amount paid by the respondent plus the HMRC Tax Relief figure.

[59]By way of example (there are 12 of these) between May 2019 and April 2020 the respondent paid £47.50 , to which was added £15.83 Tax Relief, producing an Amount Paid of £63.33 each month. That is a bit of a misnomer, as it is not amount “paid”, and was not paid by the respondent, but is, the Employment Judge understands, the amount credited to the claimant’s pension account.

[60]In order to ascertain whether there has been any deduction from wages , one needs to look each month at the amount deducted for pension contributions, and then compare it with the amount actually paid by the respondent. The claimant appears recently to have accepted this as the correct way to look at this elemts of his claims.

[61]In each case, there is a shortfall, and a larger one than the claimant originally calculated. In short what appears to have happened is that in arriving at the figure to be inserted into the claimant’s payslip, someone (or some computer program) has taken the (already enhanced) Amount Paid figure, and added, again, to it, the Tax Relief figure. Thus, £63.33, which already includes the Tax Relief of £15.83, added to the pension contribution received of £47.50, becomes £79.17, when that £15.83 is added again to it.

[62]Whether that is the explanation or not, however, does not greatly matter. The fact is that, as can be seen by checking the net pay, and adding up the deductions each month, the higher figure of , in these 12 months £79.17, or of £47.50 in 10 other months (plus two lesser amounts at the beginning and the end of the employment) are the sums that have actually been deducted.

[63]Thus, Mr Tatlock is probably quite right in that the respondent paid what it was directed to by NEST, and the best record of that appears to be the table on page 205. The respondent, however, has made deductions in excess of those sums, at the rate of £31.67 per month for the 2019 to 2020 period, and £15.83 per month for the preceding period, plus the two other months at £10.08 for the last month, and £9.64 for the first month. That is the key to understanding these claims. One looks at the deductions made on the payslips. In each case only the amount sent to NEST is the lawful or authorised deduction. Anything in excess of that sum which has been deducted is, on its face, an unauthorised deduction.

[64]The Employment Judge’s calculation of the deductions is accordingly: £31.67 per month for 12 months = £380.04 £15.83 per month for 10 months = £158.30 Case Number: 2409299/2020 Code P 11 of 24 One month at £9.64 = £9.64 One month at £10.08 = £10.08 Total: £558.06

[65]That, in the Employment Judge’s view is the amount by which the respondent made unauthorised deductions from the claimant’s wages in relation to pension contributions. The respondent’s answer to these claims has been that it paid what was required of it by NEST. That the Employment Judge does not doubt, and is doubtless the figure that appears in the table referred to on page 205. What the respondent has not explained is why a higher figure has appeared in the deductions section of the claimant’s payslips, which appears in each case to be the amount by which the claimant’s gross pay was reduced on each occasion. Whilst the claimant has used the emotive term “stolen”, the Tribunal doubts that there was any intention to deprive the claimant of anything he should have been paid, and this is doubtless an accounting or payroll error. Whatever its cause, these were unauthorised deductions and must be repaid. As they were taken from the claimant’s gross salary, however, they are gross sums, not net ones.

[66]Finally, it is appreciated that this sum exceeds that claimed by the claimant even in the latest version of the schedule of loss. To that extent, strictly speaking, the claimant requires the Tribunal’s permission to amend his claim. The Tribunal is minded to grant it, as all the information has been before the parties and the Tribunal for some time now. The amendment simply cures (with respect) the incorrect basis upon which this claim had previously been advanced. If the respondent does object to that amendment, objection can be made and considered before this part of the judgment is finalised. The claim for holiday pay.

[67]The claimant had claimed to be entitled to 4 days pay in lieu of untaken holiday upon termination of his employment. At page 256 of the bundle the claimant he set out the basis for his holiday pay claim. He rightly identified the start of his holiday year as 14 May 2019, that being the anniversary of his employment starting on 14 May 2018 (wrongly stated at box 5.1 of the claim form as 2019). He has identified some 22 days on which he claims he took (and was paid for) holiday. When his employment terminated on 13 April 2020, this was, of course, part way through the next leave year. His pro – rate entitlement, based on a 5 day working week, was to 25.8 days leave.

[68]The claimant accepts that he omitted a holiday from his list, and that he therefore took 23, not 22 days during that leave year. That leaves him , on his case, with an outstanding entitlement on termination to 3.8 days. He claims , in his latest schedule of loss, 3 days’ pay.

[69]The respondent did not address the holiday pay claim at all in the ET3 and attached document, nor in the Defence and Counter – Complaint document of 1 June 2021. In the “answers to questions” document, in answer to question 97, which asks whether it is correct that the respondent failed to pay the claimant his holiday entitlement, Mr Tatlock has simply replied “No”. Further, no mention is made of the holiday pay claim in Mr Tatlock’s Hearing Argument document of 7 March 2022. It was hard, therefore, to see what the respondent’s case upon this claim is. Mr Tatlock’s question no. 42 to the claimant suggests that he might be saying that the claimant worked for 5 hours a day on two days, but then goes on to Case Number: 2409299/2020 Code P 12 of 24 say that he calculated 2 days holiday, but then the claimant only worked from 2.00 p.m to 6.00 p.m.

[70]In his Response document of 18 April 2022, however, Mr Tatlock , after noting the correction made by the claimant in his amended schedule of loss, then says this: “A further matter is that Mr Hollis took his full holiday entitlement for 2018-2019. I was difficulties obtaining funding for Mr Hollis from DWP during the Autumn 2018, and as a consequence, by mutual consent, Mr Hollis agreed to work from home from 1st December 2018 through to whenever DWP would provide funding for 5 hours a day on sales. This continued until the 22nd December 2018, when I received funding for Mr Hollis for the previous 3 months. This time off equates to 37.5 hours, 1 week holiday and 2.5 hours. This time must be set aside [sc. against] Mr Hollis’s 2019-2020 holiday allowance for justice.”

[71]The right to pay in lieu of untaken holiday under Reg.15 of the Working Time Regulations 1998 arises upon termination, and is unaffected by the reason for termination, or any previously overtaken holiday entitlement. There can be no set off, or counterclaim, raised in answer to it , and, therefore if it was not paid, there is no defence to this claim. As it seems that the respondent’s only defence is that the claimant has previously taken or been paid for additional time off, in a different holiday year, his claim must succeed. Whilst Mr Tatlock may feel that “justice” requires there to be some set off for any previous overpayment or holiday taken, the Regulations do not permit such a broad form of equitable accounting. The respondent’s contract claim.

[72]In the response filed on (it seems) 28 August 2020 the respondent ticked box 7.2 indicating that it wished to make an employer’s contract claim against the claimant. In the details of that claim the respondent said this: “It is essential that my company’s turnover exceeded 6000 Pound or else I will lose my DWP funding. Mr Hollis was well aware of this fact , even at interview. When I asked Mr Hollis at interview “Can you secure sales of my award – winning products”, Mr Hollis replied “Yes”. Mr Hollis was incentivised to make sales.” The response continues with “See attachments”, but there are none on the Tribunal file.

[73]The claimant’s solicitors noted this too, and by email of 17 November 2020 they sought further and better particulars of the respondent’s contract claim. The Tribunal followed this up with a letter to the respondent on 8 February 2021, seeking the necessary details

[74]The respondent replied on 20 February 2021 in a document entitled “Defence and Counter – Complaint – 20.02.221”. In that document Mr Tatlock rehearsed the history of employing the claimant ,and how he reviewed his employment on 10 April 2020. He made reference to the claimant not returning the company laptop.

[75]Under the section headed “Counter Claim”, Mr Tatlock said this: “It is apparent from Mr Hollis’ wife email that Mr Hollis had no confidence in the company at an early stage in his employment and should have resigned at this Case Number: 2409299/2020 Code P 13 of 24 point. Mr Hollis’ subsequent employment was fraudulent and has had the effect that I can no longer employ a support worker through the DWP. Therefore I seek that Mr Hollis fund my new support worker.”

[76]The Tribunal wrote further to the respondent on 8 March 2021, noting the respondent’s letter of 20 February 2021, and seeking confirmation of the document that was referred to in the original response, as the reply received did not appears to be it. The respondent was asked for the relevant document.

[77]In response the respondent sent to the Tribunal (but not, it seems, at the time, the claimant, but it is in the bundle) on 13 March 2021 a further email, with a 99 page attachment. That attachment comprises of Sales Lists, and other Lists, covering the period from the start of the claimant’s employment up until March 2020, or thereabouts. In the covering email sent to the Tribunal, Mr Tatlock says “Proof of no work done by the ex-employee”.

[78]A preliminary hearing was held on 19 March 2021 by Employment Judge Humble. He ordered that the respondent by 12 April 2021 was to specify the basis upon which it sought to counter-claim, with particulars of any breach of contract on the part of the claimant upon which it sought to rely, and the sums sought from the claimant, with an explanation of how that sum is calculated.

[79]The respondent did so by letter of 12 April 2021. In that document, under the heading “Counter Claim”, Mr Tatlock initially repeated the last paragraph of his previous letter of 20 February 2021.

[80]He continued: “TERMS OF SUPPORT WORKER USE There are very strict rules about the use of the support worker in order to prevent fraud. It is essential for the Employment Tribunal to acquaint itself. This case pivots on those rules in the first instance. BREACH OF CONTRACT Mr Hollis generated no new sales during the entirety of his employment. This is after Mr Hollis promised that he was a competent salesman at interview. Mr Hollis failed to convert the expected sale at BASF. This sale for floodlighting would have secured the company’s future. I have to say that Mr Hollis broke the news with indifference. I gave Mr Hollis the latitude ‘to do his own thing’, selling any products on the company website. I also discussed other products that were available to sell, including the floor lighting tile and the battery powered floodlight. I have previously stated that the last documented log of Mr Hollis working on authorised work was midday 24th March 2020. You will find in the emails that Mr Hollis was turning his mind to developing new products, which is in breach of DWP regulations and definitely not what I asked him to do. You will see that Mr Hollis was fully aware that the company desperately needed sales from the emails. I refused to pay Mr Hollis for his time in April because I saw that as a fraud on the taxpayers. The last record of Mr Hollis providing me with authorised work was at midday 24th March 2020. Case Number: 2409299/2020 Code P 14 of 24 I have provided you with a spreadsheet showing that the taxpayers have provided Mr Hollis with over £36,000. I look forward to you deciding on how much was obtained fraudulently. As previously stated, I had to involve the police after Mr Hollis took the company laptop off the premises. Further, Mr Hollis contacted DWP, not authorised by me, to continue the fraud! I also wish to complain about DWP too.”

[81]There was a further preliminary hearing before Employment Judge Rice – Birchall on 22 April 2021. As ordered at that hearing , the claimant responded to the further particularised counter – claim on 19 May 2021.

[82]In that response the claimant denies any breach of contract, that his conduct was fraudulent, or that he is liable to fund the costs of a new support worker. It is contended (para.5) that there was no clear basis for a counter claim, and a further request for yet further further and better particulars of the counter claim. The claimant then goes on the make specific denials of the factual allegations made as to any breach of contract on his part.

[83]On 16 May 2021 the respondent did provide what appears to be a schedule of loss on the counter claim. In it the respondent seeks “DWP funding of £15.00/hour for 28 hours/week”, and , “at the Judge’s discretion” loss of reasonable profit , and the cost of sourcing a correct lens part , £664.85. This latter claim apparently goes back to 14 August 2019.

[84]The respondent further replied by a letter to the Tribunal, copied to the claimant, of 1 June 2021. This document really does little more than take issue with assertions in the claimant’s response document, and is enumerated accordingly.

[85]At para. 5, however, Mr Tatlock says this: “Poor performance and insubordination and fraud are the basis of the counter claim.”

[86]Nowhere in this document does the respondent put a figure for the sum claimed by the respondent. The allegation of fraud is maintained, and appears to amount to the allegation that the claimant was doing no work, and hence was defrauding the DWP.

[87]More recently, in his document of 7 March 2022 to the Tribunal, Mr Tatlock appears to be seeking to claim in respect of events occurring after the claimant’s dismissal. In this part of the document he says “damage is sought”. Discussion and ruling on the counter claim.

[88]The Tribunal’s jurisdiction in respect of employer’s counter claims is very limited (see Annexe). The respondent’s case is, with respect, rather unclear, and somewhat confused. Whilst at first the respondent appeared to be seeking the costs of employing a new carer, the employment of which has not been evidenced, it then additionally, seems to be seeking damages for fraud during the currency of the employment contract. The claim appears to be made not, however, by the respondent, but for the claimant to repay monies to the DWP, which it is alleged, the claimant’s actions have defrauded. Then, at a very late stage a claim is made for the cost of sourcing a part, which was apparently required because of an error made by the claimant in August 2019. Case Number: 2409299/2020 Code P 15 of 24

[89]The Tribunal’s view is that , as with the claimant’s notice pay claim, there cannot be a fair trial of the respondent’s counter claim without the parties giving oral evidence. The claimant denies any suggestion of fraud, and there are issues as to the extent to which he was employed to carry out a support role. All these issues need to be explored in oral evidence, which is not possible.

[90]Further, the Tribunal considers that the respondent’s prospects of success on its rather confused counter claim are not good. No actual loss appears to have been demonstrated . No evidence of the employment of a replacement carer (assuming there would any liability upon the claimant in the first place), or the additional cost of employing one, has been provided. Further, no claim could be sustained beyond the notice period that the claimant would be obliged to give, also one month, and so the Tribunal would again have to come back to the issue of the lawfulness of the dismissal without notice. Whilst the respondent invited to decide how much the Tribunal will order the claimant to repay the DWP that is not, with respect, its function. On an employer’s contract claim, it would have to be demonstrated that the respondent , not a third party funder, had suffered actual loss. The lens part issue is a very late addition. There is no suggestion that this had been raised with the claimant before his dismissal, and so it cannot be said to arise upon or be outstanding upon the termination of his employment.

[91]For all these reasons, the Employment Judge considers that there cannot be a fair trial of the respondent’s contract claim, which is itself a weak and confused claim, which leads the Employment Judge , in his discretion, also to propose to strike that claim out too, pursuant to rule 37(1)(e). That this gives a balance between the parties of each party’s breach of contract claim being struck out, is a further factor in the exercise of the discretion.

[92]He appreciates, however, that the Tribunal has not hitherto given the respondent notice of that intention, and accordingly the Tribunal will not strike out the respondent’s contract without affording the respondent an opportunity to make any further representations as to why that should not be done. The s.38 claim for an additional award.

[93]Turning finally to the claimant’s claim for an additional award under s.38 of the Employment Act 2002, (which is what his complaint of failure to comply with s.1 of the Employment Rights Act 1996 by the provision of a fully compliant written statement of particulars of employment amounts to) the claim is a very narrow one, and is based upon the omission of two particulars required under s.1(4) of the Act (the relevant provisions are set out in the Annexe to this judgment). Section 2(1) makes it clear that if there are no such particulars to be provided, this should be stated. Whilst this may seem a minor matter, s.38 is mandatory, and if any of the claimant’s claims succeed, the Tribunal must , subject to what appears below, make an additional award of either 2 or 4 weeks pay.

[94]The claimant’s case (see paras.57 to 59 of the written submissions document dated 7 March 2022) is that the contract documents provided to the claimant (pages 54 to 57 of the bundle) do not satisfy s.1 of the ERA in two aspects. The first is in relation to sick pay, or anything else relating to incapacity. The second is that nothing is said about any collective agreements which may be applicable to the claimant’s employment. In each case there were none. Section 1(4)(d)(ii) requires particulars of the former to be provided, and s.1(4)(j) requires particulars of the latter to be provided. Case Number: 2409299/2020 Code P 16 of 24

[95]The claimant contends that where there are no particulars to be provided , this must be stated. That , pursuant to s.2(1) is correct. That subsection is a slightly curious one, in that it expressly refers to the requirements under s.1(4)(d) or (k), but it also goes on refer to the requirements of any other paragraphs of subsections (3) and (4), which would then bring in s.1(4)(j).

[96]Mr Tatlock was asked about these matters in questions 13 and 14 , to which he replied that they were irrelevant, and that the claimant was paid sick pay. Reference is also made to Appendix 1. This does not, with respect, address the issues, but in any event the Tribunal can see what is, and what is not , included in the contracts of employment. It is correct that there is no statement of what the claimant’s entitlement to sick pay was, or was not, and no statement that there were no collective agreements applicable to his employment. If any claim succeeds therefore, an entitlement to an additional award will arise.

[97]This is, it is appreciated, a highly technical and minor breach of s.1 of the ERA, but the particulars do not satisfy s.1 in these two regards, so the provisions of s.38 are triggered.

[98]Section 38(5), however, does provide that a Tribunal may decline to make the minimum award of 2 weeks pay if there are exceptional circumstances which would make it unjust or inequitable to make such an award.

[99]The respondent was asked whether Mr Tatlock wished to advance any argument that there are exceptional circumstances to entitle the Tribunal not to make such an award. Mr Tatlock has not sought to advance any such argument, commenting only (in his response of 18 April 2022) that it seems “perverse” to make an additional payment to the claimant , when the Act “allows the omission of the sickness pay rates”. The Tribunal is not quite sure what Mr Tatlock means, but he seems to be accepting that the contracts did not include this required information.

[100]It is of note that the disability of Mr Tatlock is not relied upon as an exceptional circumstance. It is unclear whether Mr Tatlock has managed the employment of the claimant personally, and has personally prepared the employment documents and dealt with payroll issues, or whether he has had some assistance. He says the contracts were from a Gov.UK website. That is, however, irrelevant to whether the Tribunal makes any additional award, which it is mandated to do by the terms of s.38, in the absence of any exceptional circumstances.

[101]Whilst these were minor and technical breaches, with no effect upon the issues that the Tribunal has had to determine in these claims, the Tribunal has no alternative but to make an additional award. The Tribunal can only make , however, either the minimum award of two weeks pay, or the higher award of four weeks pay. Whilst the higher is sought by the claimant, the Tribunal has no hesitation in rejecting that plea, on the basis that it would not be just and equitable in these circumstances to make such an award , and will award the minimum award of two weeks pay. Conclusion and summary of awards.

[102]The Tribunal accordingly makes the following awards. The claimant’s schedule of loss dated 4 April 2022 has corrected some of the figures in the previous version, following the Tribunal’s observations in para. 15 of the Orders made on the postponement of the hearing on 16 March 2022. The claimant has accepted the Tribunal’s calculations of : Case Number: 2409299/2020 Code P 17 of 24 Gross weekly pay : £365.38 Net weekly pay : £285.70 A day’s net pay : £57.14 (i)Unlawful deduction of wages – April 2020 9 days @ £57.14 net = £514.26 (ii)Unlawful deductions from wages – pension contributions Total(gross): £558.06 (iii)Holiday pay 3 days @ £57.14 net = £171.42 (iv)Additional award – s.38 Employment Act 2002 2 weeks pay @ £365.38 = £730.76

[103]The claimant’s claim for notice pay (and the application for an ACAS uplift sought with it) , and , subject to any further representations, the respondent’s contract claim are struck out. Employment Judge Holmes 18 July 2022

[1]Statement of initial employment particulars(1) Where a worker begins employment with an employer, the employer shall give to the worker a written statement of particulars of employment.

(2) Subject to sections 2(2) to (4)— (a) the particulars required by subsections (3) and (4) must be included in a single document; and (b) the statement must be given not later than the beginning of the employment.]

(3) The statement shall contain particulars of— (a) the names of the employer and worker, (b) the date when the employment began, and (c) in the case of a statement given to an employee, the date on which the employee's period of continuous employment began (taking into account any employment with a previous employer which counts towards that period).

(4) The statement shall also contain particulars, as at a specified date not more than seven days before the statement [(or the instalment of a statement given under section 2(4) containing them)] is given, of— (a) the scale or rate of remuneration or the method of calculating remuneration, (b) the intervals at which remuneration is paid (that is, weekly, monthly or other specified intervals), (c) any terms and conditions relating to hours of work including any terms and conditions relating to— (i) normal working hours, (ii) the days of the week the worker is required to work, and (iii) whether or not such hours or days may be variable, and if they may be how they vary or how that variation is to be determined,] (d) any terms and conditions relating to any of the following— Case Number: 2409299/2020 Code P 19 of 24 (i) entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the worker's entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated), (ii) incapacity for work due to sickness or injury, including any provision for sick pay, (iia) any other paid leave, and (iii) pensions and pension schemes, (da) any other benefits provided by the employer that do not fall within another paragraph of this subsection, (e) the length of notice which the worker is obliged to give and entitled to receive to terminate his contract of employment or other worker's contract, (f) the title of the job which the worker is employed to do or a brief description of the work for which he is employed, (g) where the employment is not intended to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end, (ga) any probationary period, including any conditions and its duration, (h) either the place of work or, where the worker is required or permitted to work at various places, an indication of that and of the address of the employer, (j) any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made, … (k) [N/A]

(5) [N/A]

(6) [N/A]

[2]Statement of initial particulars: supplementary(1) If, in the case of a statement under section 1, there are no particulars to be entered under any of the heads of paragraph (d) or (k) of subsection (4) of that section, or under any of the other paragraphs of subsection (3) or (4) of that section, that fact shall be stated.

(2) A statement under section 1 may refer the [worker] for particulars of any of the matters specified in subsection (4)(d)(ii) to (iii) and (l)] of that section to the provisions of some other document which is reasonably accessible to the worker. Case Number: 2409299/2020 Code P 20 of 24

(3) A statement under section 1 may refer the worker for particulars of either of the matters specified in subsection (4)(e) of that section to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which is reasonably accessible to the [worker]. [(4) A statement, insofar as it relates to the particulars required by section1(4)(d)(iii), (j) and (l) and the note required by section 3— (a) may be given in instalments; and (b) must be given not later than two months after the beginning of the employment, even where the employment ends before that date. (5) Where before the end of the period of two months after the beginning of [a worker's employment the worker is to begin to work outside the United Kingdom for a period of more than one month, [any instalment of a statement given under subsection (4)] shall be given to him not later than the time when he leaves the United Kingdom in order to begin so to work. (6) … Employment Act 2002 38 Failure to give statement of employment particulars etc (1) This section applies to proceedings before an employment tribunal relating to a claim by [a worker] under any of the jurisdictions listed in Schedule 5. (2) If in the case of proceedings to which this section applies— (a) [N/A] (b) [N/A] (3) If in the case of proceedings to which this section applies— (a) the employment tribunal makes an award to the worker in respect of the claim to which the proceedings relate, and (b) when the proceedings were begun the employer was in breach of his duty to the [worker] under section 1(1) or 4(1) of the Employment Rights Act 1996 [or [(in the case of a claim by an employee)] under section 41B or 41C of that Act], the tribunal must, subject to subsection (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead.

(4) In subsections (2) and (3)— Case Number: 2409299/2020 Code P 21 of 24 (a) references to the minimum amount are to an amount equal to two weeks' pay, and (b) references to the higher amount are to an amount equal to four weeks' pay.

(5) The duty under subsection (2) or (3) does not apply if there are exceptional circumstances which would make an award or increase under that subsection unjust or inequitable.

(6) The amount of a week's pay of [a worker] shall— (a) be calculated for the purposes of this section in accordance with Chapter 2 of Part 14 of the Employment Rights Act 1996 (c 18), and (b) not exceed the amount for the time being specified in section 227 of that Act (maximum amount of week's pay). EMPLOYMENT TRIBUNALS EXTENSION OF JURISDICTION (ENGLAND AND WALES) ORDER 1994 4 Proceedings may be brought before an employment tribunal in respect of a claim of an employer for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if— (a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine; (b) the claim is not one to which article 5 applies; (c) the claim arises or is outstanding on the termination of the employment of the employee against whom it is made; and (d) proceedings in respect of a claim of that employee have been brought before an employment tribunal by virtue of this Order. ---------------------------------------------- Case Number: 2409299/2020 Code P 22 of 24 Case Number: 2409299/2020 Code P 23 of 24 NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 Tribunal case number: 2409299/2020 Name of case: Mr S Hollis v Microproducts Systems Limited The Employment Tribunals (Interest) Order 1990 provides that sums of money payable as a result of a judgment of an Employment Tribunal (excluding sums representing costs or expenses), shall carry interest where the full amount is not paid within 14 days after the day that the document containing the tribunal’s written judgment is recorded as having been sent to parties. That day is known as “the relevant decision day”. The date from which interest starts to accrue is called “the calculation day” and is the day immediately following the relevant decision day. The rate of interest payable is that specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as "the stipulated rate of interest" and the rate applicable in your case is set out below. The following information in respect of this case is provided by the Secretary of the Tribunals in accordance with the requirements of Article 12 of the Order:- "the relevant judgment day" is: 19 July 2022 "the calculation day" is: 20 July 2022 "the stipulated rate of interest" is: 8% Mr S Artingstall For the Employment Tribunal Office Case Number: 2409299/2020 Code P 24 of 24 INTEREST ON TRIBUNAL AWARDS GUIDANCE NOTE

[1]This guidance note should be read in conjunction with the booklet, ‘The Judgment’ which can be found on our website at www.gov.uk/government/publications/employment-tribunal-hearings-judgment-guide-t426 If you do not have access to the internet, paper copies can be obtained by telephoning the tribunal office dealing with the claim.

[2]The Employment Tribunals (Interest) Order 1990 provides for interest to be paid on employment tribunal awards (excluding sums representing costs or expenses) if they remain wholly or partly unpaid more than 14 days after the date on which the Tribunal’s judgment is recorded as having been sent to the parties, which is known as “the relevant decision day”.

[3]The date from which interest starts to accrue is the day immediately following the relevant decision day and is called “the calculation day”. The dates of both the relevant decision day and the calculation day that apply in your case are recorded on the Notice attached to the judgment. If you have received a judgment and subsequently request reasons (see ‘The Judgment’ booklet) the date of the relevant judgment day will remain unchanged.

[4]“Interest” means simple interest accruing from day to day on such part of the sum of money awarded by the tribunal for the time being remaining unpaid. Interest does not accrue on deductions such as Tax and/or National Insurance Contributions that are to be paid to the appropriate authorities. Neither does interest accrue on any sums which the Secretary of State has claimed in a recoupment notice (see ‘The Judgment’ booklet).

[5]Where the sum awarded is varied upon a review of the judgment by the Employment Tribunal or upon appeal to the Employment Appeal Tribunal or a higher appellate court, then interest will accrue in the same way (from "the calculation day"), but on the award as varied by the higher court and not on the sum originally awarded by the Tribunal.

[6]‘The Judgment’ booklet explains how employment tribunal awards are enforced. The interest element of an award is enforced in the same way. Case Number: 2409299/2020 Code P 1 of 9 EMPLOYMENT TRIBUNALS Claimant: Mr S J Hollis Respondent: MicroProducts Systems Limited FURTHER AND FINAL JUDGMENT AND CONSIDERATION OF REQUEST FOR RECONSIDERATION It is the judgment of the Tribunal that:

[1]The claimant’s claim of breach of contract (for notice pay) is struck out pursuant to rule 37(1)(e) on the grounds that a fair hearing of that claim is not possible;

[2]The respondent’s contract claim against the claimant is struck out pursuant to rule 37(1)(e) on the grounds that a fair hearing of that claim is not possible;

[4]The Tribunal grants the claimant’s application to amend his claims of unlawful deduction from wages in respect of deductions for pension contributions to permit him to claim the higher sum of £558.06.

[5]The claimant’s claim of unlawful deduction from wages in respect of deductions for pension contributions is well founded, and succeeds.

[6]The Tribunal makes the following awards: (ii)Unlawful deductions from wages – pension contributions Total: £558.06 This is a gross sum, from which the respondent is to make the appropriate deductions for tax and national insurance, for which it is to account to HMRC. Case Number: 2409299/2020 Code P 2 of 9

[9]The respondent’s application dated 8 August 2022 , entitled “appeal” is treated as an application for reconsideration under rule 70, the time for its presentation is extended and it has been given initial consideration under rule 72(1). The Employment Judge considers that there is no reasonable prospect of the judgment being reconsidered, and the application is rejected.

[10]For the avoidance of doubt, this judgment is in substitution for that sent to the parties on 19 July 2022, and is the final judgment. Any sums due under this judgment are due under it alone, and are in substitution for, and not in addition to, any awards made in the previous judgment. The Reasons given in that judgment, however, apply to the awards made in this judgment, and should be read in conjunction with the Reasons below.

[11]In para. 6, Mr Tatlock complains that as a profoundly disabled director of a micro business of one employee, he is held to the same standards as a medium size business with an HR department, and that the judgment takes no account of his profound disability .

[12]That is, with respect , not totally correct. The Tribunal took into account Mr Tatlock’s disability. Mr Tatlock may, in a sense be correct, in that the judgment did not take into account his disability, because as a matter of law, it could not. The Tribunal did not, however, judge the respondent by the same standards as a larger company with HR assistance, it applied the law, which applies equally to all employers, big or small, disabled or not. The employer is actually the limited company, and not Mr Tatlock, although the Tribunal appreciates the high degree of identification between the two. The claims in which the claimant has succeeded, and the awards made, are based upon the law as it applies to all employers. It is either complied with, or it is not. Whether non – compliance with the law was deliberate (the Tribunal does not actually consider that it was) , or inadvertent, or the result of any person’s disability is of no relevance. Whatever the cause, the Tribunal cannot, as a matter of law excuse or ignore that lack of compliance because of the profound disability of the Director of the respondent company.

[13]The respondent is reminded that in one respect, whether the Tribunal should not apply the additional award under s.38 of the 2002 Act, the Tribunal did have power not to make such an award, but only if exceptional circumstances were advanced as to why it should not do. No such circumstances were advanced.

[14]In relation to para. 7, the Employment Judge does not understand the relevance of the assertion of Mr Tatlock’s “human right” to work indirectly. Accepting for these purposes that such a right exists, that is not relevant, as , in exercising that right, through the medium of a limited company which employed the claimant, the employment law rights of the claimant still have to be observed. There is nothing in that which is incompatible with Mr Tatlock’s human rights.

[15]Finally, it is also of no relevance that the respondent company has no money and is in debt. Ability to pay, and the consequences of any judgment upon a respondent, are irrelevant considerations in the determination of whether any judgment should be issued, and in what amounts. Case Number: 2409299/2020 Code P 6 of 9

[16]The upshot of this is that the Employment Judge considers that there are no reasonable prospects of the judgment being reconsidered, and he rejects the application under rule 72(1).

[17]In relation to the remaining paragraphs of Mr Tatlock’s letter of 8 August 2022, the Employment Judge makes no comment, he must take whatever action he considers fit. Any appeal against this judgment (and the previous one) must be made to the Employment Appeal Tribunal. Remaining issues.

[18]That leaves the proposal to strike out the respondent’s contract claim, and claimant’s application to amend the claim in respect of the correct calculation of the deductions in respect of pension contributions, made formally in the claimant’s letter of 29 July 2022.In relation to the former, the respondent has advanced no good reason not to strike out the respondent’s contract claim , and it will so be. In relation to the amendment application, the respondent has not specifically responded to that, and the Employment Judge therefore allows that amendment, for the reasons advanced in the claimant’s application dated 29 July 2022. As observed, the amendment does not introduce a new cause of action, is no more than a further and better quantification of claims already made, and requires no new evidence. Conclusion and summary of awards.

[19]The Tribunal accordingly makes and confirms the following awards. (i)Unlawful deduction of wages – April 2020 9 days @ £57.14 net = £514.26 (ii)Unlawful deductions from wages – pension contributions Total(gross): £558.06 (iii)Holiday pay 3 days @ £57.14 net = £171.42 (iv)Additional award – s.38 Employment Act 2002 2 weeks pay @ £365.38 = £730.76