Ms L Magomana and Ms M Dhirawu v E2E Homecare Ltd: 2500129/2025 and 2500130/2025

EMPLOYMENT TRIBUNALS

Case No 2500129/2025, 2500130/2025

Between

Laura Dawson, CounselClaimant

E2E Homecare LtdRespondent

Before

Employment Judge A Williams

Laura Dawson (instructed by Counsel) for claimant

David Rogers (instructed by Solicitor) for respondent

Date 4 June 2025

JUDGMENT

The judgment of the Tribunal is as follows: Ms L Magomana Wages

[1]The complaint of unauthorised deductions from wages is not well-founded and is dismissed.

[2]The complaint of unpaid holiday pay is well-founded. The respondent made an unauthorised deduction from the Claimant’s wages by failing to pay the Claimant for holidays accrued but not taken on the date the Claimant’s employment ended.

[3]The Respondent shall pay the Claimant £585.48 calculated as follows: 48.79 hours x £12 per hour = £585.48 Failure to provide written statement of particulars of employment (section 1 Employment Rights Act 1996)

[4]The complaint of a failure to provide a written statement of employment particulars at the commencement of employment is not well-founded and is dismissed. Failure to provide amended written statement of particulars of employment (section 4 Employment Rights Act 1996)

[5]The complaint of a failure to provide an amended written statement of employment particulars is not well-founded and is dismissed.

[6]The claim for notice pay is not well-founded and is dismissed.

[7]The claim for expenses is not well-founded and is dismissed.

[8]All sums are awarded in gross terms. The Claimant is responsible for paying any tax or national insurance. Ms M Dhirawu Wages

[1]The complaint of unauthorised deductions from wages is not well-founded and is dismissed.

[2]The complaint of unpaid holiday is well-founded. The respondent made an unauthorised deduction from the Claimant’s wages by failing to pay the Claimant for holidays accrued but not taken on the date the Claimant’s employment ended.

[3]The Respondent shall pay the Claimant £578.40 calculated as follows: 48.2 hours x £12 per hour = £578.40 Failure to provide written statement of particulars of employment (section 1 Employment Rights Act 1996)

[5]The complaint of a failure to provide an amended written statement of employment particulars is not well-founded and is dismissed.

[6]The claim for notice pay is not well-founded and is dismissed.

[7]The claim for expenses is not well-founded and is dismissed.

[8]All sums are awarded in gross terms. The Claimant is responsible for paying any tax or national insurance.

REASONS

[1]Following a hearing on 8th May 2025 I reserved judgment on these two claims. Here I explain the reasons for my decision on each claim.

[2]The Claimant, Ms Magonama, was employed by the Respondent as a carer from 12th February 2024 to 2nd December 2024. By way of an ET1 Multiple Claim Form received on 3rd February 2025 she claims for breach of contract and/or the unlawful deduction of wages throughout her employment with the Respondent, a failure to provide written particulars of employment or amended written particulars of employment, unpaid holiday pay, notice pay, and expenses.

[3]The Claimant, Ms Dhirawu, was employed from 5th February 2024 to 2nd December 2024. She claims, by the same ET1 claim form, for breach of contract and/or the unlawful deduction of wages throughout her employment with the Respondent, a failure to provide written particulars of employment or amended written particulars of employment, unpaid holiday pay, and notice pay.

[4]The Respondent denies all claims. It maintains that the Claimants were paid for all of the hours they worked, in accordance with contracts of employment signed by them on 9th February 2024 (Ms Magomana) and 29th January 2024 (Ms Dhirawu) and as such they were paid what was properly payable. It accepts that it owes the Claimants holiday pay for holiday accrued but not taken during employment, but states that that should be calculated in accordance with the hours actually worked by the Claimants.

The Hearing

[5]I heard the claim on 8th May 2025. The Claimants were represented by Ms Dawson of Counsel. The Respondent was represented by its solicitor Mr Rogers.

[6]Both Claimants gave oral evidence. The Respondent’s witness was Ms Lynette Tendai, Managing Director and owner of the Respondent company. All witnesses had provided a witness statement. I had a final hearing bundle of 261 pages. I informed the parties at the beginning of the hearing that I had read all witness statements and the final hearing bundle.

Issues

[7]I discussed the issues with the parties and all were agreed that the issues for determination were as set out below.

[8]I noted that the evidence referred to a number of issues of alleged misconduct and a disciplinary process that appeared irrelevant to the claims brought by the Claimants. Both parties agreed I need not hear evidence or submissions on these issues nor make findings in relation to them. The central issue, it was agreed, was the contractual basis on which the Claimants were employed and to be paid.

[9]The agreed list of issues were as follows. Breach of contract/Unlawful deduction of wages (ss.13-27 Employment Rights Act 1996) 1.1. What were the contractual terms relating to pay and hours? The Claimants say the contract was for 39 alternatively 40 hours per week at £11 per hour. The Respondent says that that contract (‘the Original Contract’) was never effected and was voided by the Claimants refusal and/or inability to drive, which was a condition of the Original Contract. The Respondent says the Claimants were employed on a flexible hours contract (‘the Flexible Contract’) and were paid for the hours actually worked. 1.2. What was properly payable? 1.3. Was the amount of wages paid to the Claimants less than the amount properly payable? 1.4. If so, by how much? How much are the Claimants owed? Failure to provide written particulars (s.1 Employment Rights Act 1996) and/or amended written particulars of employment (s.4 Employment Rights Act 1996) 2.1. When these proceedings were begun, was the Respondent in breach of its duty to give the Claimants a written statement of employment particulars or of a change to those particulars? 2.2. If the claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks pay under section 38 Employment Act 2002? 2.3. Would it be just and equitable to award four weeks’ pay? 3. Did the Respondent fail to pay the Claimants for annual leave the Claimants had accrued but not taken when their employment ended? 3.1. If so, how many days had the Claimants accrued and what should the award be? 4. Were the Claimants entitled to notice pay? 4.1. If so, how much? 4.2. Did the Respondent fail to pay the Claimants’ notice pay entitlement? 5. Was the Respondent in breach of contract for failing to reimburse the Claimant Ms Magonama for the purchase of personal protective equipment?

Findings of Fact

[10]The relevant facts are as follows. Where I have had to resolve any conflict in the evidence, I indicate how I have done so at the material point. In doing so I bear in mind that the Claimants bring the claim and bear the burden of establishing the salient facts on which their claim is based to the relevant standard of proof, the balance of probabilities.

[11]The Claimants are migrant workers from Zimbabwe who required sponsorship to live and work in the UK. The Respondent is the provider of domiciliary care and employs carers to attend clients’ homes to provide care as required. It is apparent from Ms Tendai’s evidence and the documents in the bundle that the Respondent employs a large number of migrant workers and was, until 22nd January 2024, licenced to sponsor those workers to come to the UK. The licence having been suspended on that date, it was subsequently reinstated in August 2024.

[12]The parties agree that the Respondent provides care to clients across a large geographical area and in remote areas. The Respondent says that the ability to drive is an essential part of the role of carer for the company.

[13]The parties agree that in September 2023 both Claimants were interviewed remotely via Microsoft Teams (whilst still in Zimbabwe) by the Respondent’s deputy manager Catherine Maswaya.

[14]The Respondent says that in the course of this interview the Claimants were asked about their ability to drive and held up copies of their driving licence. The Claimants deny that they were asked. I have not seen or heard evidence from Ms Maswaya and the Respondent has not produced any notes of the interviews nor any procedure document which shows that this is asked as a matter of course.

[15]I must therefore decide this disputed issue based solely on the evidence of the Claimants and Ms Tendai. I prefer the evidence of Ms Tendai. Generally she gave evidence before me at the hearing that was in keeping with the contents of her written statement. In contrast, the Claimants gave evidence that was often at odds with the contents of their witness statement, or added material evidence that had not previously been raised, as I go on to identify in the remainder of this judgment.

[16]Ms Tendai told me that every interviewee is asked about their ability to drive. I accept, as a matter of common sense, that in order to fulfil the full time hours of 39-40 hours per week the Respondent’s full time carer contract provides for across a rural area, the ability to drive in the UK would be essential. That is reflected within the Original Contract where it states: “Your employment with the Company is conditional upon you having a valid driving licence appropriate to the vehicle concerned…”

[17]As such I find that it is more likely than not that interviewees for carer roles were asked about, and scored upon, their ability to drive. Ms Tendai said that since the issues that arose with the Claimants’ employment they have changed their procedure. Rather than asking interviewees to show their driving licence remotely, they now ask for copies in advance. I find this element of her evidence is consistent with the importance of driving to the role.

[18]Following the interview the Claimants received a job offer letter. The contents of the letter refers twice to the Original Contract. It states that employment is offered “on the terms detailed below and those set out in the Employee Handbook and Contract of Employment” and, later states “…refer to the enclosed Contract of Employment”.

[19]Ms Magonama said in evidence that she received the Original Contract at the same time as the offer letter. Ms Dhirawu says she received it on a later date. Both Claimants agree that they signed and returned the Original Contract to the Respondent prior to coming to the UK. The Claimants rely upon the absence of any reference to the requirement to hold a driving licence or ability to drive in the UK within the offer letter to contend it was not a term of their employment.

[20]I find that the offer letter does not contain all of the relevant terms of the contract. It does not, as Mr Rogers pointed out, detail even basic terms one might expect to see in a contract of employment such as start time, finish time, or sick pay entitlement. As it makes explicit reference to the Original Contract enclosed I find that it is to be read together with the Original Contract and I accept, as the Respondent contends, that the Original Contract formed part of the Respondent’s offer of employment.

[21]As a result, I am bound to find that the Claimants’ employment was conditional upon them having a valid driving licence and, impliedly, the ability to drive on the roads in the UK. I find that in signing the Original Contract, the Claimants were accepting that they met that condition knowing that they could not.

[22]It is the Respondent’s case that when the Claimants came to the UK it soon became apparent that the Claimants could not fulfil that condition of their employment. Ms Magomana has a driving licence but refuses to drive on the roads in the UK. Ms Dhirawu does not have a driving licence.

[23]In Ms Magomana’s case, this is consistent with her oral evidence before me. In her statement she disputed that the Respondent was ever aware that she was too afraid to drive on the roads in the UK but she accepted in oral evidence that she had informed the Respondent of this. I find that she did make the Respondent aware of this. I accept that, this being a condition of their employment that they could not fulfil, this was a fundamental breach of the Original Contract which entitled the Respondent to treat it as at an end.

[24]The Claimants state that they attended the Respondent’s office only once on arriving in the UK, on 18th January 2024 to collect their company t-shirts. The Respondent says that they were both subsequently invited to attend the office again, Ms Dhirawu on 29th January and Ms Magomana on 9th February to discuss the impact of their inability to drive on their contract of employment and sign a revised contract. I find that in inviting the Claimants to sign a revised contract the Respondents accepted their fundamental breach of the Original Contract.

[25]The Respondent says that during these meetings both Claimants were offered and signed a different contract of employment, the Flexible Contract. The Flexible Contract states that it ‘supersedes the initial contract’, and that ‘following a review, it was determined that the employee does not meet a key requirement for the role, namely holding a valid UK driver’s licence. Consequently, this revised contract reflects the role’s adjustment to a flexible hour’s [sic] arrangement, whereby the employee will be paid for hours worked’.

[26]The Claimants deny that this meeting ever took place. They deny ever receiving the email sent to each of them inviting to the office to discuss a revised contract on 24th January and 5th February respectively.

[27]They deny that they signed the Flexible Contracts, and deny that the signatures on the Flexible Contracts are theirs. They say that those signatures are forged.

[28]I find that the Claimants did sign the Flexible Contract. The emails of 24th January, in Ms Dhirawu’s case and 5th February in Ms Magomana’s case were clearly sent to email addresses bearing the Claimants’ names. The signatures on the Flexible Contracts appear to be the same as those on the Claimants’ witness statements. There is no evidence before me on which to base a finding that the Respondent forged the Claimants’ signature on the Flexible Contracts.

[29]The Claimants proceeded to work flexible hours between February 2024 and September 2024 and were paid according to the hours worked. During this entire period they raised no complaints about this state of affairs despite now claiming that they were entitled to 39 or 40 hours of work per week. I find that had the Claimants genuinely believed they were contractually entitled to 39 or 40 hours per week and to be paid accordingly it is unlikely they would not have raised this as an issue with the Respondent at all during this entire period.

[30]I find these facts are more consistent with the Claimants having entered into a flexible working arrangement as demonstrated by the signed contracts before me, than with the case the Claimants ask me to accept, which is that the Respondent has forged apparently contemporaneous emails, contracts and signatures for the purposes of these proceedings. I find it is more likely than not that the Claimants signed the flexible contracts.

[31]The Claimants were paid £12 per hour, as per the Flexible Contract. The Claimants, as part of their claim, seek a declaration that their hourly rate was £12 per hour and that they were contracted to work 40 hours per week minimum. The original contract provides for an hourly rate of £10.75. The Claimant’s claim is incompatible with their factual case, in that they are seeking to enforce the payment terms in accordance with the Flexible Contract – one they assert is a forgery – and hours terms in accordance with the Original Contract.

[32]Between February 2024 and September 2024 the Claimants worked according to the shifts allocated to them, and were paid accordingly an hourly rate of £12.

[33]On 9th September 2024, the Claimants were invited to a disciplinary hearing. There is some dispute between the parties as to whether this was in fact a disciplinary hearing or an informal meeting to discuss concerns the Respondent had about the Claimants’ conduct. It is not necessary for me to make a finding on this to resolve the issues in the claim. Following the hearing, Ms Tendai wrote to each of the Claimants advising them that the Respondent was suspending all of their allocated shifts and would be offering a zero hours contract going forward.

[34]The following day, Ms Dhirawu e-mailed Ms Tendai requesting to be removed from the rota on the basis that Ms Tendai had terminated her contract. In her evidence, Ms Dhirawu accepted that she had sent an email on that date but denied that the email before me in the final hearing bundle was the email she had sent. No other email had been produced. I find that the email dated 10th September 2024 at [135] of the final hearing bundle is the email Ms Dhirawu sent. There is no evidence before me on which to find to the contrary.

[35]The Respondent says that Ms Magomana called the Respondent on 11th September 2024 requesting that she is removed from the rota going forward. Ms Magomana denies that this phone call ever took place. I find that it did. The Claimants thereafter appeared to work closely together in bringing identical grievances against the Respondent. There is no evidence before me of Ms Magomana requesting work from the Respondent after this date. Her conduct thereafter is entirely consistent with this phone call having taken place and I am satisfied that it is more likely than not that it did.

[36]Ms Magomana says that she purchased gloves when she was not provided with sufficient PPE for a sum of £12.99 which the Respondent failed to reimburse. The receipt relied upon says only ‘miscellaneous’ and shows a date of purchase of 5th July 2024. There is no evidence of Ms Magomana requesting that she is reimbursed. For these reasons I cannot find that Ms Magomana purchased gloves, nor that the Respondent failed to reimburse her upon request. Relevant Law and Conclusions Unlawful deduction from wages

[37]Section 13 of the Employment Rights Act 1996 provides that an employer shall not make deductions from the wages of a worker employed by it except in certain circumstances (which do not apply here). Section 13(3) provides that a deduction occurs where the total amount of wages paid to the worker on any occasion is less than the amount properly payable to the worker on that occasion.

[38]In determining what is ‘properly payable’ I must take into account all the circumstances and, where appropriate, consider and make findings on the contractual position (Agarwal v Cardiff University and others

[2018] EWCA CIv 2084

), as I have done above.

[39]As set out above, having considered the contracts of employment I have found that what was properly payable to the Claimants was £12 per hour for the hours worked as recorded in accordance with the Respondent’s time keeping procedures.

[40]Both Claimants accepted in their oral evidence that they were paid £12 per hour for all the hours actually worked during their employment with the Respondent.

[41]I therefore find that the Claimants were paid what was properly payable to them and as such the Respondent did not make any unlawful deduction from their wages and was not in breach of contract.

[42]As to holiday pay, employees are entitled to be paid in lieu of holiday accrued but not taken on termination of employment (The Working Time Regulations 1998 Regulation 14(2)). In the absence of a contractual entitlement to leave, as in this case, the employee is entitled to 5.6 weeks leave of annual leave.

[43]The Respondent accepts that it failed to pay the Claimants their holiday pay entitlement but contends that the sum owed should be calculated in accordance with the hours of holiday accrued on the basis of the flexible contract. In light of my findings above I accept that that is the basis on which holiday pay is owed, per the Flexible Contract which provides that the Claimants’ holiday entitlement will be calculated based on the number of hours worked in the previous 52 weeks.

[44]Ms Dhirawu’s accrued entitlement was 48.2 hours and she is owed £578.40.

[45]Ms Magomana’s accrued entitlement was 48.79 hours and she is owed £585.48. Failure to provide written particulars of employment and/or amended written particulars of employment

[46]Section 1(1) Employment Rights Act 1996 requires employers to give a written statement of employment particulars to workers when a worker begins their employment.

[47]For the reasons given above, I find that the Claimants were given and signed a contract of employment prior to coming to the UK, on 20th September 2023 in Ms Dhirawu’s case and 16th October 2023 in Ms Magomana’s case.

[48]I also find that the Claimants were given and signed a flexible contract of employment when they were unable to fulfill a condition of employment under the Original Contract, on 29th January 2024 in Ms Dhirawu’s case and 9th February 2024 in Ms Magomana’s case.

[49]As such, I do not accept that the Respondent was in breach of either sections 1 or 4 Employment Rights Act 1996.

[50]In light of the findings above I accept that it was the Claimants who terminated their contracts without notice on 10th and 11th September by their request to the Respondent to be removed from the rota. The Claimants are not entitled to notice pay.

[51]There is no express term of the Flexible Contract that provides the Claimants will be reimbursed for any personal protective equipment. The Claimants have failed to plead or explain the basis of their claim. In any event given my findings above I reject Ms Magomana’s claim that she was not reimbursed for the gloves she purchased. EJ A Williams