Mr S Dolan v Eden Bar And Drink T/a Eden: 2409524/2020

EMPLOYMENT TRIBUNALS

Case No 2409524/2020

Between

Mr Scott DolanClaimant

Eden Bar & Drink T/A EdenRespondent

Date 24 August 2021

JUDGMENT

[1]The Tribunal does not have the jurisdiction to consider the claimant’s claims of unfair dismissal and failure to make a statutory redundancy payment which are struck out.

[2]The claimant’s claim for 5-days accrued unpaid holiday entitlement is well-founded and the respondent is ordered to pay to the claimant accrued unpaid holiday in the sum of £220 by admission of the respondent.

REASONS

[1]In a claim form received on the 4 August 2020 the claimant claimed unfair dismissal, failure to make a statutory redundancy payment, unlawful deduction of wages and accrued unpaid holiday pay.

[2]In the claim form the claimant claims 5-days holiday calculated at £220. Liability for this claim in the sum of £220 has been conceded by the respondent in its ET3, and accordingly judgment is given in favour of the claimant without the need for a liability hearing on this issue.

[3]The correct name of the respondent is Eden Bar and Drink Limited T/A Eden. Eden Bistro is not a legal entity.

[4]On the 12 August 2020 the claimant was sent a strike out warning by the Tribunal on the basis that under the Employment Rights Act 1996 as amended, he was not entitled to bring a claim of unfair dismissal or failure to make a redundancy payment as he was employed from the 1 July 2019 to 16 July 2020, a continuous period of less than two years. Case No: 2409524/2020

[5]In an email sent to the Tribunal on the 19 August 2020 the claimant asked that his claims not be struck out on the basis that the respondent acted badly, illegally and paid his wages late. The reasons set out by the claimant have no merit; essentially, he was not employed continuously for two years and the Tribunal does not have the jurisdiction to consider his complaint of unfair dismissal and a failure to make a redundancy payment.

[6]The claimant’s remaining claims of unlawful deduction of wages will be listed for a final hearing save with the exception of his claim that he borrowed money and wants this to be repaid, and universal credit payments missed or fines for tax being declared late by the respondent. The Tribunal does not have the jurisdiction to consider these complaints.

[7]The parties will be advised of the hearing date in due course. _____________________________ Employment Judge Shotter 9.9.20

[1]The claimant claims that he did not receive payment of wages on various dates in 2020 including dates when the claimant was on furlough and the respondent was claiming and in receipt of monies from the Government’s Job Retentions Scheme (furlough monies). Furlough monies were claimed and paid to the respondent during a period when the respondent’s restaurant was, necessarily, closed.

[2]This case was listed for hearing on 30 November 2020. As at that date, judgment had already been issued which: -a. Struck out the claimant’s complaints of unfair dismissal and for a statutory redundancy payment (on the basis that the claimant did not have 2 year’s continuous employment with the respondent);

b. Granted judgment in favour of the claimant for payment for 5 days accrued, untaken holidays (the respondent had by then accepted that this was owed) amounting to £220.

[3]That judgment was sent to the parties on 16 September 2020 and the case listed for hearing in order to determine the remaining complaints.

[4]The parties were provided with case management orders (CMOs) that they were to comply with in order to ensure that a fair hearing could take place.

[5]At the hearing on 30 November 2020 it was clear that neither party had complied with the CMOs. At that hearing therefore I required the parties to provide further information, ensuring that all information provided by one party was shared with the other party (in compliance with Rule 92 of the Employment Tribunal Rules of Procedure 2013 so that the other party would then have an opportunity to comment. I would then reach my decision based on the information obtained from the parties at the hearing on 30 November and further information received.

[6]The parties took some time to provide further information requested and, further, neither party complied with the clear instructions to copy the other party into the information they were providing. Unfortunately, further delay then occurred due to the case file at the Tribunal having been misfiled and it could not be located for a period.

[7]When the further information was provided to me on 9 July 2021 it was clear that the respondent had not shared with the claimant, the information sent to the Tribunal. I directed that information be shared and asked each party to provide answers to specific questions. The claimant provided his answers. The Case No: 2409524/2020 3 respondent did not.

[8]Having considered the representations of the parties at the hearing on 30 November 2020 and the additional written evidence and information provided I make the findings of fact as set out in paragraphs below.

[9]The claimant worked a week on hand and is owed wages of £220. The respondent admitted this in his undated letter received by the Tribunal in March 2021.

[10]The claimant is owed additional unpaid wages as noted below.

[11]The respondent alleges the additional amount owing is £366.17 and is only in relation to 2 weeks in July 2020. The claimant alleges that he is owed wages ( at a reduced rate on the basis of amounts owed to him on operation of the Government’s Job Retention Scheme) for the week of 3 April and then for 4 weeks throughout June 2020 and the first week of July 2020.

[12]The position set out (and admissions made) in writing by the respondent in March 2021 differs from the information provided in the response form and at the hearing on 30 November 2020. The claimant on the other hand has constantly maintained that he is owed wages for 5 weeks that he was on furlough as well as wages for the period 1-9 July 2020.

[13]Both parties have provided documentary evidence which they say supports their position. The respondent relies on his accountant. The claimant relies on his own calculations about wages he has not been paid but has also provided evidence from the Governments Universal Credit Service (UCS) and from screenshots of his own bank account.

[14]I prefer the claimant’s evidence in relation to the amounts owing for 4 weeks in June 2020 and the 1 week in April 2020. I note the information reported to the claimant by “Rachel” of the UCS service Centre at Makerfield specifically about pay advices provided by the respondent to HMRC and that a pay advice for 3 April 2020 is missing from the list of dates “Rachel” sent to the claimant. This supports the claimant’s version of events. Further I find that (understandably) the claimant has paid close attention to the amounts owed to him and which have not been paid and that his evidence in relation to these amounts has been consistent throughout.

[15]As for the amounts owing for July 2020 I note that in the letter to the Tribunal of March 2021, Mr. Stewart of the respondent sets out the days and hours that he says the claimant worked/attended the respondent’s restaurant in July and that a total of £366.17 is owing for July (as against the amount claimed by the claimant of £146.06).

[16]Again, I prefer the claimant’s version of events from his claim form and Case No: 2409524/2020 4 following, even though the respondent has stated that additional amounts are owing for July 2020 (and even though the claimant now looks to be granted judgment for the additional amounts). In preferring the claimant’s version of events, I have applied the same reasoning as I have to the other amounts owing. It is clear to me that the claimant has paid much closer attention to the amounts owing to him and the work carried out by him than the respondent has.

[17]Accordingly, the sums outstanding and due to the claimant are those set out at the top of this judgment amounting to a total of £1284.56.

[18]The parties should note that the amount due under this Judgment is in addition to the existing Judgment sent to the parties on 16 September 2020 for five days accrued unpaid holiday entitlement in the sum of £220. Employment Judge Leach Date: 24 August 2021