Mr J Parekh and Mr R K Nuna v PH Leicester Ltd (in administration) and Secretary of State for Business and Trade: 2601336/2023 and 2601338/2023
EMPLOYMENT TRIBUNALS
Case No 2601336/2023, 2601338/2023
Between
Mr J Parekh and Mr R K NunaClaimantPH Leicester Ltd (in administration) and Secretary of State for Business and TradeRespondent
Before
Employment Judge S ChapmanIn person for claimantNeither Respondent attended the hearing for respondentDate 27 June 2025
JUDGMENT
[1]The judgment of the Tribunal is: Application to Amend 1.1. The claims for both C1 and C2 are amended to include claims for unfair dismissal. 1.2. It is just and equitable that C1 should retain his right to receive a redundancy payment in accordance with s.164(2) ERA. 1.3. C1’s claim of unfair dismissal is well founded and succeeds. 1.4. C2’s claim of unfair dismissal is well founded and succeeds. Unlawful Deduction from Wages – Wages 1.5. C1’s claim of Unlawful Deduction from Wages – Wages is well founded and succeeds. 1.6. C2’s claim of Unlawful Deduction from Wages – Wages is well founded and succeeds. Unlawful Deduction from Wages – Holiday Pay 1.7. C1’s claim of Unlawful Deduction from Wages – Holiday Pay is not well founded and fails. 1.8. C2’s claim of Unlawful Deduction from Wages – Holiday Pay is well founded and succeeds. Breach of Contract – Expenses 1.9. C1’s claim for breach of contract in relation to unpaid expenses is not well founded and fails. 1.10. C2’s claim for breach of contract in relation to unpaid expenses is not well founded and fails. 1.11. C1’s claim for notice pay is well founded and succeeds. 1.12. C2’s claim for notice pay is well founded and succeeds. Written Statement of Employment Particulars 1.13. C1’s claim for compensation for failure to provide a Written Statement of Employment Particulars is well founded and succeeds.[2]R1 is ordered to pay C1 the following: 2.1. Basic award - £227.28 (gross) 2.2. Unlawfully deducted wages (wages) – £534.83 (gross) 2.3. Notice Pay - £281.78 (net) 2.4. Written Statement of Employment Particulars - £454.56.[3]Gross figures should be paid by R1 less deductions for tax and NI contributions.[4]If the Redundancy Payments Service makes a statutory redundancy payment to C1, that will extinguish the basic award for unfair dismissal.[5]R1 is ordered to pay C2 the following: 5.1. Basic award - no award is made for the basic award for unfair dismissal as a statutory redundancy payment has been met by the Redundancy Payments Service. 5.2. Unlawfully deducted wages (wages) – £1106.28 (gross) 5.3. Unlawfully deducted wages (holiday pay) - £66.50 (gross) 5.4. Notice Pay – £907.81. (net)[6]Gross figures should be paid by R1 less deductions for tax and NI contributions.[7]The Tribunal notes that C2 has received a payment for unpaid wages from the Redundancy Payments Service. Therefore any award made to C2 in relation to an unlawful deduction from wages in respect of his wages is reduced by the amount awarded to C2 for unpaid wages from the Redundancy Payment
REASONS
[8]C1 and C2 were both employed as delivery drivers for R1.[9]In April 2023 R1 ceased trading and in September 2023 went into administration.[10]C1 and C2 each made a claim to the Tribunal on 8 June 2023. Those claims were for redundancy, unfair dismissal, unpaid wages, unpaid holiday, unpaid expenses and notice pay.[11]C1 and C2 also each made a claim to the Redundancy Payments Service (part of R2’s department). Claims can be made in relation to: 11.1. a redundancy payment; 11.2. holiday pay; 11.3. outstanding payments like unpaid wages, overtime and commission; and 11.4. statutory notice pay.[12]C1’s claim was unsuccessful due to being out of time and the matter remitted to the Tribunal to consider whether it is just and equitable for the claimant to retain a redundancy payment entitlement.[13]C2’s claim was partially successful and C2 received payments in relation to redundancy, arrears of pay and compensatory notice pay.[14]The Tribunal must consider each of C1 and C2’s claims and whether there is a just and equitable reason for C1 to retain their entitlement to a payment from the Redundancy Payments Service. Procedure, Documents and Evidence Heard[15]The hearing took place on 19 February 2025, in person, at Leicester Employment Tribunal.[16]For C1 The Tribunal heard from Mr Jatinkumar Parekh himself.[17]For C2 The Tribunal heard from Mr Rama Krishna Nuna himself.[18]C1 and C2 adopted their ET1s as their witness statements.[19]R1 is in administration and was not expected to attend the hearing.[20]R2 had previously indicated they would not attend the hearing and requested that its ET3 and Grounds of Resistance be treated as its written submissions pursuant to Rule 42 of the Employment Tribunal Procedure Rules 2024. The Tribunal adopted them as such.[21]The Tribunal decided to proceed in the absence of R1 and R2.[22]There was no bundle provided for the hearing, however the Tribunal has reviewed the digital case files of correspondence and documentation previously provided to the Tribunal running to 182 pages in relation to C1 and 72 pages in relation to C2.[23]In addition the Tribunal received documentation from C1 and C2 at the start of the hearing. A number of the documents were duplicates of those already within the digital case files. The documents that were not duplicates were: 23.1. From C1: 23.1.1. Payslip dated 10 May 2023 23.1.2. Payslip dated 10 April 2023 23.1.3. Payslip dated 10 March 2023 23.1.4. Payslip dated 10 February 2023 23.1.5. Payslip dated 10 January 2023 23.1.6. Payslip dated 10 December 2022 23.1.7. Payslip dated 10 November 2022 23.1.8. Payslip dated 10 October 2022 23.1.9. Payslip dated 10 September 2022 23.1.10. Payslip dated 10 August 2022 23.1.11. Payslip dated 10 July 2022 23.1.12. Payslip dated 10 June 2022 23.1.13. A summary of the last 12 months payslips 23.2. From C2: 23.2.1. Payslip dated 10 May 2023 23.2.2. Payslip dated 10 April 2023 23.2.3. Payslip dated 10 March 2023 23.2.4. Payslip dated 10 February 2023 23.2.5. Payslip dated 10 January 2023 23.2.6. Payslip dated 10 December 2022 23.2.7. Payslip dated 10 November 2022 23.2.8. Payslip dated 10 October 2022 23.2.9. Payslip dated 10 September 2022 23.2.10. Payslip dated 10 August 2022 23.2.11. Payslip dated 10 July 2022 23.2.12. Payslip dated 10 June 2022 23.2.13. A summary of the last 12 months payslips 23.2.14. A copy of the statement of terms and conditions of employment for hourly paid staff between R1 and C2, signed by C2 on 4 October 2015 and unsigned by R1[24]In coming to its decision, the Tribunal has had regard to all of the written and oral evidence submitted, even if a particular aspect of it is not mentioned expressly within the decision itself.
Issues
[25]Did C1 make a claim for redundancy within 6 months of being dismissed?[26]If no, did C1 make a claim for redundancy between 6 and 12 months after being dismissed?[27]If yes, is it just and equitable that C1 should receive a redundancy payment? Employment Status[28]Was the claimant an employee?[29]When did employment start?[30]When did the employment end?[31]Was there a contract?[32]Was the claimant dismissed? Redundancy dismissals[33]What was the reason or principal reason for dismissal? The respondent says the reason was redundancy.[34]If the reason was redundancy, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant, in particular, whether: 34.1. The respondent adequately warned and consulted the claimant; 34.2. The respondent adopted a reasonable selection decision, including its approach to a selection pool; 34.3. The respondent took reasonable steps to find the claimant suitable alternative employment; 34.4. Dismissal was within the range of reasonable responses. Unlawful Deduction from Wages[35]How frequently were wages paid to the claimant (weekly, monthly etc)?[36]When was the last time wages were paid to the claimant?[37]How much is the claimant owed? Holiday Pay[38]Did the respondent fail to pay the claimant for annual leave the claimant had accrued but not taken when their employment ended?[39]What was the claimant’s notice period?[40]Was the claimant paid for that notice period?[41]If not, was the claimant guilty of gross misconduct / did the claimant do something so serious that the respondent was entitled to dismiss without notice? Breach of Contract - Expenses[42]Did this claim arise or was it outstanding when the claimant’s employment ended?[43]Was that a breach of contract?[44]How much should the claimant be awarded as damages? Remedy for unfair dismissal[45]If there is a compensatory award, how much should it be? The Tribunal will decide: 45.1. What financial losses has the dismissal caused the claimant? 45.2. Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? 45.3. If not, for what period of loss should the claimant be compensated? 45.4. Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? 45.5. If so, should the claimant’s compensation be reduced? By how much? 45.6. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 45.7. Did the respondent or the claimant unreasonably fail to comply with it? 45.8. If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%? 45.9. If the claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct? 45.10. If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion? 45.11. Does the statutory cap of fifty-two weeks’ pay apply?[46]What basic award is payable to the claimant, if any?[47]Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? Other Remedy[48]How much should the claimant be awarded?[49]Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?[50]Did the respondent or the claimant unreasonably fail to comply with it?[51]Is it just and equitable to increase or decrease any award payable to the claimant?[52]By what proportion, up to 25%? In relation to Schedule 5 Employment Act 2002 cases:[53]When these proceedings were begun, was the respondent in breach of its duty to give the claimant a written statement of employment particulars or of a change to those particulars?[54]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 of the Employment Act 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay.[55]Would it be just and equitable to award four weeks’ pay?
Relevant Law
[56]In relation to whether C1 should retain his right to a redundancy payment, the law is set out in s.164 of the Employment Rights Act 1996 (“ERA”). Where a claimant has not, within 6 months from dismissal, made a claim for redundancy payment or submitted a claim to the Tribunal for unfair dismissal, but has done so within 12 months from dismissal, then it is for the Tribunal to consider whether it is just and equitable for the claimant to retain his right to a redundancy payment.[57]S.94 ERA sets out that an employee has the right not to be unfairly dismissed.[58]S.98(1) ERA requires that in deciding whether a dismissal was unfair, it is for the employer to show the reason for that dismissal. That reason must fall within a list of potentially fair reasons to be found within s.98(2) of which s.98(2)(c) states: A reason falls within this subsection if it – … (b) is that the employee was redundant…[59]S.139 ERA contains the statutory definition of redundancy. It includes, at s.139(1)(b), the situation where a dismissal is wholly or mainly attributable to the requirements of the business for employees to carry out work of a particular kind having ceased or diminished or expected to cease or diminish.[60]The Tribunal has no jurisdiction to take account of the economic or commercial reason for redundancy itself. It is not for the Tribunal to assess or comment upon how an employer runs its business. We are only concerned with whether the reason for dismissal was redundancy and whether a genuine redundancy situation (as defined by s.139 ERA) existed (per James W Cook and Co (Wivenhoe) Ltd v Tipper 1990 ICR 716, CA).[61]S.98(4) ERA also requires the Tribunal to consider whether the employer acted reasonably in dismissing the employee for one of the reasons in s.98(2). On the issue of fairness in a redundancy dismissal, the Employment Appeals Tribunal (‘EAT’) gave guidance in Williams v Compare Maxam Ltd [1982] IRLR 83, summarised as follows: 61.1. Was there a genuine redundancy situation; 61.2. Did the employer properly consult; 61.3. Was the employee fairly selected for redundancy; and 61.4. Did the employer explore and consider alternative employment?[62]The Tribunal must consider the reasonableness of the employer’s decision to dismiss and, in judging the reasonableness of that decision, the Tribunal must not substitute its own decision as to what was the right course to adopt for the employer. Rather, the Tribunal must consider whether there was a band of reasonable responses to the redundancy situation within which one employer might reasonably take one view whilst another quite reasonably takes a different view. The function is to determine whether, in the particular circumstances of the case, the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted.[63]S.98(4) also requires a consideration of whether the procedure by which an employer dismissed an employee is fair. If an unfair procedure has been followed the Tribunal is not allowed to ask itself, in determining whether a dismissal was fair, whether the same outcome (i.e. dismissal) would have resulted anyway even if the procedure adopted had been fair (per Polkey v AE Dayton Services Ltd [1987] IRLR 503 HL).[64]However, an adjustment can be made to any compensatory award following a finding of unfair dismissal to reflect the likelihood that the employee would have been dismissed anyway, even if the employer had acted fairly. Further guidance on how to assess such an adjustment was provided in Software 2000 Ltd v Andrews [2007] IRLR 568. Unauthorised Deductions from Wages[65]S.13 ERA prohibits an employer from making a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or the worker has previously signified in writing his agreement or consent to the making of the deduction.[66]A worker is defined for the purposes of s.13 by s.230(3) ERA to include both an employee and a person who undertakes to perform personally any work or services for someone else whose status is not that of a client or customer of any profession or business carried on by that person.[67]A complaint for a breach of s.13 can be presented, by a worker, to an employment tribunal under s.23 ERA. However, any such complaint cannot usually be considered unless it is presented before the end of the period of three months beginning with the date of payment of the wages from which the deduction was made.[68]The deduction must be from the worker’s wages and a deduction occurs when the employer pays less than the amount due on any given occasion and this includes a failure to make any payment at all following the case of Delaney v Staples (t/a De Montfort Recruitment) [1991] ICR 331, CA. Breach of Contract[69]The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 provides that Employment Tribunals have jurisdiction to consider certain complaints of breach of contract. The Tribunal only has jurisdiction where the claim is brought by an employee, and where the claim arises or is outstanding on the termination of the employee’s employment.[70]A Tribunal does not have jurisdiction to consider a complaint of breach of contract which is issued before employment was terminated, even if employment has subsequently terminated – Capek v Lincolnshire CC [2000] ICR 878. Statutory minimum notice periods[71]S.86 ERA sets out the rights of the employer and employee to minimum notice: 71.1. The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more71.1.1. is not less than one week’s notice if his period of continuous employment is less than two years; 71.1.2. is not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years; and 71.1.3. is not less than twelve weeks’ notice if his period of continuous employment is twelve years or more. Background & Facts[72]It is not the Tribunal’s function to resolve each and every last dispute of fact between the parties but to focus on those matters necessary to determine the issues before it and to put the case in its proper context. On that basis, and on the balance of probabilities, the Tribunal make the following findings of fact.[73]In oral evidence C1 stated that he had made an error on the claim when he had inserted the date 01 November 2021 and the later reference in his ET1 to working for R1 for two and a half years was correct. C2 confirmed this in oral evidence too. On the balance of probabilities, the Tribunal finds that C1 commenced employment with R1 in November 2020.[74]C1 never received a contract of employment from R1 when he was hired or a written statement of particulars. C1 stated that he had repeatedly asked for one, but it had not been provided. There is no evidence before the Tribunal of the terms of C1’s employment contract with R1, whether written, verbal or implied. However, C1 has produced payslips setting out his pay and holiday pay in the 12 months prior to his employment ending and in oral evidence C1 stated that his holiday arrangements were the same as those of C2. This is consistent with the evidence of holiday pay being paid on both C1 and C2’s payslips.[75]C2 commenced employment with R1 on 25 September 2015 as evidenced by his contract of employment. C2 is an employee of R1 and there is a contract in place between C2 and R1.[76]C2’s contract of employment sets out that R1’s holiday year runs from 1 April to 31 March and that C2 is entitled to 4 weeks holiday / the prevailing statutory entitlement to holiday in each holiday year. It goes on to set out that payment for a week’s holiday will be equivalent to the amount C2 earns in a normal working week.[77]C2’s contract of employment sets out that R1 may terminate C2’s employment by notice in writing. The period of that notice is determined by length of service. At the time of C2’s employment coming to an end, C2 had been employed by R1 for just over 7 and a half years. As such, R1 would be required to give C2 7 weeks’ notice.[78]C2’s contract of employment is silent as to the payment of expenses or mileage.[79]R2 has stated that the Administrator for R1 confirmed that R1 closed its stores without notice in the first week of April 2023 and never re-opened them. The director verbally confirmed that all employees were made redundant upon the closure of the stores. The Tribunal accept that R1’s reason for dismissal was redundancy.[80]R2 has stated that the Administrator confirmed on the questionnaire to the Redundancy Payments Service that the dismissal date for both C1 and C2 was 7 April 2023. The Tribunal accepts that this is the date both C1’s and C2’s employment with R1 ended.[81]In oral evidence both C1 and C2 stated that when the stores closed they tried to contact R1 but were unable to reach them. They stated that they only found out for definite about the administration when they were notified in September – 5 months and 5 days after their last date of work. By this time, both C1 and C2 had submitted claims to the Tribunal.[82]In oral evidence both C1 and C2 stated that there had been no indication that they were to be made redundant and they had not been consulted about it. the Tribunal finds this to be credible.[83]On 8 June 2023, the Tribunal received C1’s ET1. The ET1 listed an ACAS early conciliation certificate number and gave details of other potential claimants against R1. The ET1 listed C1’s role as a delivery driver and C1’s employment commencing on 01 November 2021. Elsewhere in the ET1 he stated that he had been working for R1 for the last two and a half years. The ET1 set out that C1 was paid monthly and that his employment was ongoing. Further on in the ET1, C1 set out that he was making a claim for redundancy pay and other payments, which he set out amounted to 2 month’s wages. Further on in the ET1, under the remedy section, C1 ticked the boxes relating to reinstatement after unfair dismissal, compensation and a recommendation in relation to discrimination. C1 stated that he did not have a disability in his ET1.[84]On 8 June 2023, the Tribunal received C2’s ET1. The ET1 listed an ACAS early conciliation certificate number. The ET1 listed C2’s role as a delivery driver and C2’s employment commencing on 15 August 2015. The ET1 set out that C2 worked on average 20 hours per week and was paid monthly and that his employment was ongoing. Further on in the ET1, C2 set out that he was making a claim for redundancy pay, notice pay, arrears of pay (March and April 2023) and other payments. In the ET1, C2 refers to unpaid mileage for March and April 2023. Further on in the ET1, under the remedy section, C2 ticked the boxes relating to reinstatement and reengagement after unfair dismissal, compensation and a recommendation in relation to discrimination. C2 stated that he did not have a disability in his ET1.[85]On 19 August 2023, the Tribunal wrote to C1 and advised that the claim had been ordered to be considered alongside a claim by C2 against R1 because they appear to give rise to common or related issues of fact and law.[86]On 29 August 2023, C2 submitted a schedule of loss to the Tribunal (dated 28 August 2023) together with a cover email detailing how he had calculated the figures. Within that email he refers to his claim as being one of unfair dismissal.[87]On 31 August 2023, C1 submitted a schedule of loss to the Tribunal, however the document appears to be incomplete and undated.[88]On 12 September 2023, the Administrator wrote to all employees of R1 to advise them that they had been appointed as the administrator of the company with effect from 7 September 2023. The Administrator also advised employees that a claim could be made to the Redundancy Payments Service for any unpaid wages, redundancy pay, accrued holiday pay and compensation for loss of office, subject to qualifying employment periods being met.[89]On 3 October 2023, the Tribunal wrote to C1 and C2 and advised that R1 was in administration and that the claims could not proceed without the consent of the Administrator or the permission of the court. C1 and C2 were invited to seek the consent of the Administrator or make an application to the court. In the meantime, the proceedings would be stayed.[90]On 6 October 2023, C2 provided a letter from the Administrator (dated 4 October 2023) confirming their consent to commence proceedings in the Tribunal.[91]On 12 October 2023, C1 provided a letter from the Administrator (dated 11 October 2023) confirming their consent to commence proceedings in the Tribunal.[92]On 11 December 2023, C1 made a claim to the Redundancy Payments[93]On 19 December 2023, the Insolvency Service wrote to C1, rejecting their claim for Redundancy Pay under s.166 of the Employment Rights Act 1996 (the “Act”), Arrears of Pay under s.184(1)(a) of the Act and Holiday Pay Accrued under s.184(1)(c) of the Act.[94]On 15 October 2024, C2 emailed the Tribunal to quantify their claim. They attached a schedule of loss dated 28 August 2023, previously received by the Tribunal together with a cover email detailing how he had calculated the figures. They also highlighted in their cover email that this was a case of unfair dismissal.[95]C2’s schedule of loss and cover email sets out that they were claiming for: 95.1. Outstanding wages in March and April 2023 95.2. Outstanding holiday pay in April 2023 95.3. Outstanding mileage money 95.4. Unfair dismissal 95.5. Redundancy 95.6. Notice pay 95.7. Compensation for discrimination / injury to trust and feelings[96]On 16 October 2024, C1 emailed the Tribunal to quantify their claim. They attached a schedule of loss dated 31 August 2023 which they stated they had already provided to the Tribunal, however the case file does not have a complete copy of this previously submitted document.[97]C1’s schedule of loss and cover email sets out that they were claiming for: 97.1. Outstanding wages in March and April 2023 97.2. Outstanding holiday pay in April 2023 97.3. Outstanding mileage money 97.4. Unfair dismissal 97.5. Redundancy 97.6. Notice pay 97.7. Compensation for discrimination / injury to trust and feelings[98]On 25 October 2024, R2 wrote to the Tribunal to request a copy of the relevant ET1s in order that it could consider its position in relation to the proceedings. R2 also set out that C2 had already received payments from the National Insurance Fund including a statutory redundancy payment.[99]On 03 December 2024, R2 provided an ET3 and Grounds of Resistance. The Grounds of Resistance related to both C1 and C2’s claims and set out: 99.1. R1 was insolvent within the meaning of s.166 and s.183 of the Act, having gone into administration on 7 September 2023. 99.2. The Administrator had confirmed that R1 operated 4 franchises in the Midlands and they were closed without notice in the first week of April 2023 and never re-opened. The director verbally confirmed that employees were made redundant upon the closure of the stores. 99.3. C2 and the Administrator have confirmed that C2’s last day worked was 7 April 2023. 99.4. C2’s claim to the Redundancy Payments Service for redundancy, arrears of pay and compensatory notice payment were paid on 10 October 2023. 99.5. C2’s claim for holiday pay was rejected as it was unable to verify this claim with the Administrator. 99.6. C1’s claim to the Redundancy Payments Service was received on 11 December 2023. 99.7. C1’s claim to the Redundancy Payments Service stated that his last working day was 7 May 2023 and his employment officially ended on 7 September 2023. The Administrator has stated that C1’s dismissal date was 7 April 2023. 99.8. C1’s claim for redundancy payment was rejected on 19 December 2023 for being outside of the requisite 6 month time limit. However the Tribunal can determine whether it is just and equitable for the claimant to receive a payment given the claim was received between 6 and 12 months from the dismissal. 99.9. C1’s claim for arrears of pay was rejected because a claim was being made for a period of time after dismissal. 99.10. C1’s claim for holiday pay was rejected as it was unable to verify this claim with the administrator.[100]R2 indicated that it would not be represented in person at any future hearing and requested that the ET3 be treated as its written submissions pursuant to Rule 42 of the Tribunal Procedure Rules 2024.[101]On 5 December 2024, the Tribunal wrote to R2 to accept its response and noted it as a second respondent.[102]On 12 December 2024, C2 emailed the Tribunal on behalf of C1 setting out their response to the Grounds of Resistance and asking the Tribunal to consider the case as an unfair dismissal and an unfair rejection of C1’s claim by the Redundancy Payments Service. C2 disputed that the 6 month time limit should run from the date of dismissal but should in fact run from when notification was received from the Administrator (which was when they received information about how to make a claim).[103]In oral evidence, C2 stated that he had received a payment for redundancy, arrears of pay and notice pay from R2. C2 confirmed that he had not been paid in relation to his outstanding holiday pay or mileage. C2 also stated that he wished to continue his claim for unfair dismissal.[104]In oral evidence, C1 confirmed that he wished to continue all of his claims, including unfair dismissal.[105]In oral evidence, C2 explained that the payslips related to pay for the month before, i.e. the payslip dated 10 May 2023 related to pay for April 2023. He also stated that there were often delays in receiving payments from R1 in relation to wages and expenses.[106]In oral evidence C1 stated that he had received payslips in May 2023 and April 2023 which related to work undertaken in April 2023 and March 2023 respectively. He stated that although he had received the payslips he had not received the monies owed into his bank account. He was usually paid monthly. C1 confirmed that all wages for the period prior to March 2023 had been paid.[107]According to the information on the payslips, the gross amount owed for April 2023 was £66.48 and for March 2023 was £468.35.[108]In oral evidence C2 stated that he had received payslips in May 2023 and April 2023 which related to work undertaken in April 2023 and March 2023 respectively. He stated that although he had received the payslips he had not received the monies owed into his bank account. He was usually paid monthly. C2 confirmed that all wages for the period prior to March 2023 had been paid.[109]According to the information on the payslips, the gross amount owed for April 2023 was £247.48 and for March 2023 was £858.80.[110]In oral evidence, C2 explained how the holiday and mileage system operated. He stated that this was the same for both C1 and C2.[111]In relation to holiday, he stated that C1 and C2 were entitled to 4 weeks holiday a year. As delivery drivers they worked shift patterns rather than regular hours, therefore for every 3 months worked, they accrued 1 week’s holiday. Holiday was paid as a separate line item on their payslips. C1 and C2 provided their pay slips for the 12 months prior to their employment ending.[112]C1’s payslips showed that C1 had been allocated the following holiday pay: 112.1. 72 hours of holiday pay at a rate of £9.50 an hour for the period May 2022 to April 2023. 112.2. There is no holiday pay listed on C1’s payslips for April 2023 or March 2023.[113]C2’s payslips showed that C2 had been allocated the following holiday pay: 113.1. 53.4 hours of holiday pay at a rate of £9.50 an hour for the period May 2022 to April 2023.[114]In oral evidence C2 stated that the 7 hours holiday pay listed on his payslip for the period of March 2023 had not been paid. This amounted to a gross figure of £66.50. C2 confirmed that all of his holiday prior to March 2023 had been paid.[115]In relation to expenses C2 stated the general procedure for mileage was that they paid for petrol out of their own pockets and then there was a document at work that they filled in. At the end of each month R1 would reimburse those expenses either in cash or by bank transfer. R1 did not provide any documentation in relation to that reimbursement. C2 had asked the Administrator for a copy of the document on which mileage / petrol was recorded but it had not been provided. C2 confirmed in oral evidence that the figures provided in his schedule of loss and cover email to the Tribunal were therefore estimates based on how much he had received in January and February 2023.[116]C1 confirmed in oral evidence that his position in relation to mileage/expenses was the same as set out by C2 and his figures were also an estimate.[117]In oral evidence C1 confirmed that his employment with R1 was a second job. He stated that he had not received any notice that his employment would be coming to an end, nor had he been paid any notice payment. After his employment with R1 ended he said he could not find another job to replace it that fitted around his day job. He was also unable to increase his hours in his day job to make up the shortfall from no longer being employed by R1.[118]In oral evidence C2 confirmed that his employment with R1 was a second job. He stated that he had not received any notice that his employment would be coming to an end, nor had he been paid any notice payment. After his employment with R1 ended he said he struggled to find another job to replace it that fitted around his day job, but did end up taking work with Lidl and Dominoes. He worked the additional roles from June 2023 until February 2024, before he had to leave as it was affecting his health. The pay for his work at Lidl and Dominoes was above the pay he received when working for R1 due to working evening shifts and unsocial hours. C2 stated that he was unable to increase his hours in his day job to make up the shortfall from no longer being employed by R1.[119]In relation to C1’s claim to the Redundancy Payments Service, C1 stated that at the time he found out he needed to make a claim he was in Pakistan and had lost all hope regarding his claims against R1. He stated that when C2 told him he needed to make the claim then he made it as soon as possible. Both C1 and C2 stated that in order to make a claim they needed a “CN” number from the Administrator, which was only provided in September, leaving less than a month to make the claim to the Redundancy Payments Service. C1 stated that if he had been provided with the information from the Administrator sooner, he would have put his claim in to the Redundancy Payments Service sooner. Discussion & Conclusions Application to Amend[120]Throughout C1 and C2’s pleadings and correspondence with the Tribunal, they have maintained that their claim is one of unfair dismissal, despite this box not being ticked on the ET1. At the hearing, both C1 and C2 asked for their claims to include unfair dismissal. The Tribunal treated this request as an application to amend.[121]In the Tribunal’s view this is a case of re-labelling the cause of action in respect of already pleaded facts and it is in the interests of justice to consider C1 and C2’s claims for unfair dismissal, alongside the redundancy claims, unlawful deduction from wages clams and the breach of contract / notice pay claims.[122]The Tribunal therefore decides that the claims for both C1 and C2 be amended to include claims for unfair dismissal. Discrimination[123]Both C1 and C2 refer to compensation for discrimination / injury to trust and feelings in their ET1s and their schedules of loss, however no discrimination claims have been raised, therefore the Tribunal has concluded these were referred to in error as they are not relevant to the claims in issue. The Tribunal has therefore disregarded them for the purposes of this judgment. Employment Status[124]Both C1 and C2 were employees of R1, with over 2 years employment each and both were dismissed on 7 April 2023. C1 did not have a written employment contract in place. C2 did have a written employment contract in place.[125]C1 presented a claim to the Tribunal on 8 June 2023, following a dismissal on 7 April 2023. This claim was made within 6 months of C1 being dismissed. The claim related primarily to unpaid wages, redundancy but also references seeking remedy for unfair dismissal.[126]It is arguable that C1 has therefore complied with the provisions of s.164(1) ERA and retains his right to a redundancy payment. The Tribunal notes that C1’s claim was not formally amended to one of unfair dismissal until the hearing on 19 February 2025, but C1 maintained his position throughout his correspondence with the Tribunal from Autumn 2023 to the hearing date that his claim included unfair dismissal.[127]C1 subsequently submits a claim to the Redundancy Payments Service in December 2023, which is within the 6 months to 12 months time period set out in s.164(2) ERA.[128]C1 and C2 both gave evidence that they were unclear on the status of R1 until they had been formally contacted by the Administrator as R1 had provided little to no contact since closing down its stores.[129]C1 gave evidence that there was less than a month between receiving the information from the Administrator as to how to make a claim to the Redundancy Payments Service (including the provision of the required “CN” number, without which claims would be rejected) and the initial 6 month time period in s.164(1) expiring.[130]Finally, C1 was out of the country (in Pakistan) in the Autumn of 2023 which would have hindered the receipt and processing of information and the ability to make a claim.[131]The Tribunal is minded of the lack of information provided to employees of R1 following the decision to close stores, the delay in the Administrator being able to provide the relevant information about the Redundancy Payments Service to employees of R1 and the fact the C1 had already submitted a claim to the Tribunal, believing to to encompass unfair dismissal.[132]Therefore in all the circumstances, the Tribunal finds it is just and equitable that C1 should retain his right to receive a redundancy payment in accordance with s.164(2) ERA.[133]The Tribunal finds that the reason for C1 and C2’s dismissal was redundancy. R1 had closed down it’s business and subsequently gone into administration. C1 and C2’s dismissals were attributable to that and this is a potentially fair reason for dismissal.[134]The Tribunal therefore turns to whether, in all the circumstances, the dismissals were fair. In considering the fairness of the dismissals the Tribunal is particularly looking at: 134.1. Was there a genuine redundancy situation; 134.2. Did the employer properly consult; 134.3. Was the employee fairly selected for redundancy; and 134.4. Did the employer explore and consider alternative employment?[135]Whilst there did seem to be a genuine redundancy situation as R1 has closed its business down, in this situation, R1 did not warn C1 or C2 about the redundancy or consult with them and there were no steps taken to find C1 or C2 alternative employment. Contact between R1 and C1 and C2 had all but ceased in April 2023. By all accounts, C1 and C2 were not formally aware that their employment had been terminated on 7 April 2023 until they were contracted in September 2023 by the Administrator. This is supported by both C1 and C2’s ET1s where they state their employment to be continuing. It is only through verbal confirmation to the Administrator (as set out in R2’s Grounds of Resistance) that R1 has ever stated that C1 and C2 were redundant from 7 April 2023. As R1 had closed down its business there was no opportunity to explore or consider alternative employment.[136]In these circumstances, the Tribunal finds that the dismissals were procedurally unfair and that C1 and C2 were unfairly dismissed.[137]However, given that R1 had ceased trading, the Tribunal further finds that if R1 had followed the proper statutory process in relation to redundancy, C1 and C2 would have been fairly dismissed by reason of redundancy in any event.[138]Turning to remedy for unfair dismissal, in relation to C1: Basic award 138.1. Given C1’s age and the number of years of complete service with R1, the calculation of his basic award is £113.64 x 2 = £227.28 gross. As this is a case of redundancy unfair dismissal, the Tribunal make no reduction in respect of contributory fault. 138.2. Therefore the total basic award is £227.28 (gross). 138.3. If the Redundancy Payments Service makes a statutory redundancy payment to C1, that will extinguish the basic award for unfair dismissal. Compensatory award 138.4. C1 is employed and his role with R1 was a second job. Since being dismissed, C1 has not been able to find a second role to replace his role with R1 nor has he been able to increase his hours in his first role, despite efforts to do both. The loss of net earnings between the end of C1’s notice period and the date of the hearing is calculated as 95 weeks x £112.71 = £10,707.45 net. 138.5. The Tribunal make no award for loss of future earnings as over a year has passed since C1 was dismissed and that is a reasonable time period in which to find a new role. 138.6. C1 made a claim of £95 for expenses incurred in seeking a new role, but the Tribunal has no evidence before me of those expenses and as such the Tribunal has not awarded them. 138.7. The Tribunal makes no award for loss of statutory rights as had the correct statutory procedure been followed, C1 would have been dismissed in any event Puglia v C James and Sons [1996] IRLR 70). 138.8. The compensatory award is reduced by 100% (in line with Polkey v AE Dayton Services Ltd [1987] IRLR 50 (HL)) as had R1 followed the correct statutory procedure, C1 would have been dismissed fairly by reason of redundancy due to R1 closing down its business. 138.9. Therefore the total compensatory award is £0.[139]In relation to C2: Basic award 139.1. Given C2’s age and the number of years of complete service with R1, the calculation of his basic award is £130.00 x 7 = £910 gross. As this is a case of redundancy unfair dismissal, the Tribunal make no reduction in respect of contributory fault. 139.2. Therefore the total basic award is £910 (gross). 139.3. However, no award is made for the basic award for unfair dismissal as a statutory redundancy payment has been met by the Redundancy Payments Service. Compensatory award 139.4. C2 is employed and his role with R1 was a second job. Since being dismissed, C2 secured alternative employment at a higher rate of pay from June 2023. The loss of net earnings between the end of C2’s notice period and the date he began his new role is calculated as 2 weeks x £103.74 = £207.48 net. 139.5. The Tribunal makes no award for loss of future earnings as C2 was able to secure an alternative role. 139.6. C2 made a claim of £95 for expenses incurred in seeking a new role, but the Tribunal has no evidence before me of those expenses and as such the Tribunal has not awarded them. 139.7. The Tribunal makes no award for loss of statutory rights as had the correct statutory procedure been followed, C2 would have been dismissed in any event Puglia v C James and Sons [1996] IRLR 70). 139.8. The compensatory award is reduced by 100% (in line with Polkey v AE Dayton Services Ltd [1987] IRLR 50 (HL)) as had R1 followed the correct statutory procedure, C2 would have been dismissed fairly by reason of redundancy due to R1 closing down its business. 139.9. Therefore the total compensatory award is £0. Unlawful Deduction from Wages – Wages[140]Both C1 and C2 were paid monthly by R1 and despite receiving payslips relating to the periods March 2023 and April 2023, they stated they have not been paid the pay element set out on those payslips for those periods.[141]Both C1 and C2 confirmed that there are no other periods for which they have not been paid and the Tribunal finds them to be credible witnesses in this respect.[142]There is no evidence before the Tribunal that these deductions from wages are authorised or fall within any exemption, therefore both C1’s and C2’s claims for unlawful deductions from wages are well founded and succeed.[143]Taking the information on the payslips to be accurate: 143.1. the gross amount owed to C1 for April 2023 was £66.48 and for March 2023 was £468.35, giving a gross total payable to C1 of £534.83. 143.2. the gross amount owed to C2 for April 2023 was £247.48 and for March 2023 was £858.80, giving a gross total payable to C2 of £1106.28.[144]Neither C1 or C2 have presented any evidence to the Tribunal of consequential financial loss arising from these unlawful deductions.[145]Applying the guidance in Walters t/a Rosewood v Barik UKEAT/0053/16/BA, the award for unlawful deduction from wages is a gross amount which R1 can satisfy by payment to the claimant of the net amount due and payment to HMRC of any tax and national insurance which falls to be deducted at source.[146]If R1 is insolvent, or fails or refuses to pay the above sums following all[147]The Tribunal notes that C2 has received a payment for unpaid wages from the Redundancy Payments Service. Therefore any award made to C2 in relation to an unlawful deduction from wages in respect of his wages is reduced by the amount awarded to C2 for unpaid wages from the Redundancy Payment Unlawful Deduction from Wages – Holiday Pay[148]Holiday pay is included in the payslips for both C1 and C2 and is paid monthly (where due) by R1.[149]Both C1 and C2 claimed outstanding holiday pay in relation to the payslip dated 10 April 2023. Whilst C2’s payslip itemises 7 hours of holiday pay, C1’s payslip does not show any holiday pay due and payable.[150]The payslip does not therefore support C1’s claim for holiday pay. C1’s claim for holiday pay is therefore not well founded and fails.[151]C2 states that the seven hours shown on the payslip have not been paid, but that there are no other periods for which he has not been paid holiday and the Tribunal finds him to be a credible witness in this respect.[152]There is no evidence before the Tribunal that this deduction from wages was authorised or falls within any exemption, therefore C2’s claim for unlawful deductions from wages is well founded and succeeds.[153]Taking the information on the payslip to be accurate the gross amount owed to C2 for the 7 hours of holiday pay is £66.50.[154]C2 has not presented any evidence to the Tribunal of consequential financial loss arising from these unlawful deductions.[155]Applying the guidance in Walters t/a Rosewood v Barik UKEAT/0053/16/BA, the award for unlawful deduction from wages is a gross amount which R1 can satisfy by payment to the claimant of the net amount due and payment to HMRC of any tax and national insurance which falls to be deducted at source.[156]If R1 is insolvent, or fails or refuses to pay the above sums following all Breach of Contract – Expenses[157]In relation to both C1 and C2 this claim was outstanding when their employment ended.[158]In relation to C1 there is no evidence before the Tribunal of a contractual term between C1 and R1 relating to mileage or expenses nor is there evidence before the Tribunal to quantify the claim.[159]As such C1’s claim for breach of contract in relation to unpaid expenses is not well founded and fails.[160]In relation to C2 there is no contractual term in the contract of employment with R1 relating to the reimbursement of mileage or expenses. In practice, the reimbursement of mileage and expenses appears to have been a more informal arrangement, In addition, there is no evidence before the Tribunal to quantify the claim.[161]As such C2’s claim for breach of contract in relation to unpaid expenses is not well founded and fails.[162]Pursuant to s.86 ERA, both C1 and C2 were entitled to notice, having both been continuously employed by R1 for at least two years but not more than twelve years.[163]At the date of dismissal, C1 had been employed by R1 for around 2 years and 5 months, entitling him to 2 weeks’ notice.[164]At the date of dismissal, C2 had been employed by R2 for around 7 years and 6 months, entitling him to 7 weeks’ notice. This is the same entitlement as under C2’s contract with R1.[165]Neither C1 nor C2 were given any notice by R1 that their employment was coming to an end and only received formal confirmation from the Administrator in September 2023, some five months after their date of dismissal.[166]Neither C1 nor C2 were paid for their notice by R1 after their employment came to an end.[167]There is no evidence before the Tribunal that C1 or C2’s conduct gave rise to circumstances where R1 was entitled to dismiss without notice.[168]As such, C1’s and C2’s claims for notice pay are well founded and succeed.[169]Both C1 and C2 worked irregular hours. They provided pay slips for the 12 months prior to the effective date of termination (being 7 April 2023).[170]Based on those payslips: 170.1. C1 earnt £5860.73 net in the 12 months prior to his effective date of termination, equating to an average net weekly pay of £112.71. 170.2. C1 was entitled to 2 weeks notice which were not paid, compensation for this is £225.42 (net). 170.3. A failure by R1 to follow statutory procedures increases this compensation payment by 25% equating to £56.36. 170.4. Therefore the total compensation due to C1 in relation to statutory notice pay is £281.78. 170.5. C2 earnt £5394.85 net in the 12 months prior to his effective date of termination, equating to an average net weekly pay of £103.75. 170.6. C2 was entitled to 7 weeks notice which were not paid, compensation for this is £726.25 (net). 170.7. A failure by R1 to follow statutory procedures increases this compensation payment by 25% equating to £181.56. 170.8. Therefore the total compensation due to C2 in relation to statutory notice pay is £907.81.[171]If R1 is insolvent, or fails or refuses to pay the above sums following all[172]The Tribunal notes that C2 has received a payment for notice pay from the Redundancy Payments Service. Therefore any award made to C2 in relation to statutory notice pay is reduced by the amount awarded to C2 for notice pay from the Redundancy Payments Service. Written Statement of Employment Particulars[173]At the time C1 began these proceedings, he had not received a contract of employment or a written statement of employment particulars from R1. There are no exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under s.38 of the Employment Act 2002 for this breach by R1.[174]Furthermore, C1 gave evidence that he repeatedly asked for these details and was never provided them by R1. Therefore, it is just and equitable to award the maximum of four weeks’ pay to C1 in relation to this breach by R1.[175]C1 earnt £5909.29 gross in the 12 months prior to his effective date of termination, equating to a gross average weekly pay of £113.64.[176]Therefore the total compensation due to C1 in relation to the failure to provide the Written Statement of Employment Particulars is £454.56. Approved by: Employment Judge S Chapman 27 June 2025 ...01 July 2025........... For the Employment Tribunal .................................... Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/