Mr S Lik v Archis Scaffolding Solutions Ltd: 3200482/2021
EMPLOYMENT TRIBUNALS
Case No 3200482/2021
Between
Mr S LikClaimantArchis Scaffolding Solutions LtdRespondent
Before
Tribunal Judge Overton acting as, an Employment JudgeIn person for claimantMs S Palmer (instructed by Counsel) for respondentDate 30 December 2025
JUDGMENT
[1]The Claimant is ordered to pay £250 contribution to the Respondent’s costs pursuant to rule 76(2) of the Employment Tribunal Rules 2013.
REASONS
[1]The Preliminary Hearing listed for 27th January 2022 was adjourned because the Claimant’s witness statement referred to a large number of documents that did not appear in the 3 bundles before the Tribunal. Although the documents had been provided to the Tribunal Service by way of a number of emails sent over a period of weeks, those documents had not been collated into a bundle and had not been seen by the Judge conducting the hearing.[2]An attempt was made to identify the documents referred to in the witness statement but the task was too onerous for the time available and the hearing was adjourned.[3]The Respondent made an application for costs on the day of the hearing on the basis that the Claimant’s conduct of the case had been unreasonable in that he had failed to cooperate with the Respondent in the case preparation and had failed to comply with the directions of the Employment Tribunal made by EJ Elgot at the Preliminary Hearing on 20 September 2021 and subsequently by EJ Gardiner on 17 January 2022.
Relevant Law
[4]The Tribunal power to award costs is set out in rule 76 of the 2013 Employment Tribunal Rules 76.-(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that - (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or others unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success; or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins.(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been adjourned or postponed on the application of a party. 78.- (1) A costs order may - (a) order the paying party to pay the receiving a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) order the paying party to pay the receiving party the whole or specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles; or, in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Fees of Solicitors in the Sheriff Court )(Amendment and Further Provisions) 1993, or by an Employment Judge applying the same principles; (c) order the paying party to pay the receiving party a specified amount as reimbursement of all or part of the Tribunal fees paid by the receiving party; (d) order the paying party to pay another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses (of the kind described in rule 75(1)(c)); or (e) if the paying party and receiving party agree as to the amount payable, be made in that amount. (2) Where the costs order includes an amount in respect of fees charged by a lay representative, for the purposes of the calculation of the order, the hourly rate applicable for the fees of the lay representative shall be no higher than the rate under rule 79(2).(3) For the avoidance of doubt, the amount of a costs order under sub-paragraphs (b) to (e) of paragraph (1) may exceed £20,000.[5]I had regard to the structured approach set out in the case of Milan v Capsticks Solicitors LLP & Others UKEAT/0093/14/RN where the then President of the EAT, Langstaff J, described the exercise to be undertaken by the Tribunal as a 3 stage exercise at paragraphs 52: There are thus three stages to the process of determining upon a costs order in a particular amount. First, the tribunal must be of the opinion that the paying party has behaved in a manner referred to in [Rule 76]; but if of that opinion, does not have to make a costs order. It has still to decide whether, as a second stage, it is “appropriate” to do so. In reaching that decision it may take account of the ability of the paying party to pay. Having decided that there should be a costs order in some amount, the third stage is to determine what that amount should be. Here, covered by Rule [78], the tribunal has the option of ordering the paying party to pay an amount to be determined by way of detailed assessment in a county court.[6]I therefore considered the following issues:6.1 Has the putative paying party behaved in the manner proscribed by the rules?6.2 If so, it must then exercise its discretion as to whether or not it is appropriate to make a costs order, (it may take into account ability to pay in making that decision).6.3 If it decides that a costs order should be made, it must decide what amount should be paid or whether the matter should be referred for assessment, (again the Tribunal may take into account the paying party’s ability to pay). The Respondent’s cost application and Claimant’s response[7]In summary, the Respondent asserts that the Claimant’s conduct was unreasonable for the following reasons:7.1 The Claimant failed to co-operate with Tribunal directions made at the earlier Preliminary Hearing and later by EJ Gardiner.7.2 The Claimant sent large numbers of documents when the second Preliminary Hearing was to deal with a specific and narrow issue.7.3 The Claimant had not engaged appropriately with the hearing preparation process and had responded to the Respondent’s attempt to explain the case preparation process by accusing the Respondent’s representative of bullying.7.4 The Claimant’s conduct resulted in an unnecessary expenditure of costs. The sums claimed amount to £14,300 + VAT[9]The Claimant resisted the Respondent’s costs application. He attributed his conduct of the case preparation to lack of knowledge of the Tribunal process and his belief that the Respondent was including all the documents relevant to the Respondent’s case and was refusing to include the Claimant’s evidence in the hearing bundle.[10]The Claimant stated that he found the Tribunal process very stressful and that he felt the Respondent’s representative had raised his voice at him and this had added to his stress. He confirmed that he was earning over £60,000 a year and that he was supporting his wife and two daughters. Conclusion on Respondent’s cost application[11]Pursuant to Rule 76(1)(a) of the Employment Tribunal Rules I conclude that the Claimant acted unreasonably in his approach to preparing for the second Preliminary Hearing of 27 January 2022 and failing to co-operate with the Respondent’s representative in preparing a joint bundle for hearing. However, the Respondent could have included the disputed documents in a separate section of the bundle rather than leaving it to the Claimant to produce his own bundle for the Preliminary Hearing.[12]I find that the Claimant has made two attempts to provide the information requested by the Respondent in December 2021 and which was the subject of the directions made by EJ Gardiner. It is accepted that the Claimant’s responses have not been adequate but I find that the Claimant has not been acting unreasonably in this regard and further directions have now been made.[13]On the basis of my findings set out at paragraph 11 above, I exercise my discretion to award costs under 76(1)(a) of the 2013 ET Rules. The Respondent claims its costs for the preparation of the adjourned Preliminary Hearing and the attendance of solicitor and Counsel at the hearing. In these circumstances I exercise my discretion to award costs and order that the Claimant make a contribution of £250 to the Respondent’s costs in preparing for the adjourned Preliminary Hearing. Tribunal Judge Overton acting as, an
Introduction
[1]The claimant, Mr S Lik, brought claims against the respondent, Archis Scaffolding Solutions Ltd, relating to unauthorised deduction from wages, unpaid holiday pay, breach of contract (including salary, shares, company car, and bonus), notice pay/wrongful dismissal, and failure to provide written particulars and pension contributions. The respondent contested the claims, save for certain concessions as set out below.
Issues to be Determined
[2]The Tribunal identified the following key issues: 2.1. Whether the claimant was an employee of the respondent and, if so, the relevant dates of employment. 2.2. Whether the claimant’s claims for unauthorised deduction from wages and breach of contract were brought in time and made out on the facts. 2.3. Whether the claimant was entitled to unpaid holiday pay. 2.4. Whether the claimant was entitled to a company car, bonus, or shares as part of his contractual terms. 2.5. Whether the claimant was dismissed without notice and, if so, whether this constituted wrongful dismissal. 2.6. Whether the respondent failed to provide written particulars of employment and pension contributions.
Relevant Law
[3]The following legal provisions and principles were relevant: 3.1. Statutory rights under Employment Rights Act 1996: Governing employee status, unauthorised deductions, written particulars, and notice pay. 3.2. Common Law of Contract: Requirements for the existence and certainty of contractual terms, including offer, acceptance, consideration, and intention to create legal relations. 3.3. TUPE Regulations.
Evidence
[4]The claimant gave evidence on his own behalf. The respondent’s principal witness was Matthew Warner (director). Additional evidence was given by Grant Bowen, Damien Pitt, and Paul Ferrari for the respondent.[5]I also considered contemporaneous documents, including emails, invoices, text messages, and draft contracts.[6]My findings below are based on the oral and documentary evidence, with particular weight given to contemporaneous documents and the evidence of the claimant and Matthew Warner. In summary, I found inconsistencies in the evidence of both principal witnesses but was assisted by the documentary material. I was not satisfied that the claimant had established contractual entitlement to a company car, bonus, or shares, nor that he was entitled to unpaid holiday pay. I was satisfied there was an agreement to pay an agreed salary and found the respondent failed to pay the agreed sums for certain periods.[7]I was not satisfied that other discussions and assurances in respect of potential additional future sums had established a binding entitlement. Facts I found the following facts from the evidence.[9]The claimant commenced employment with the respondent on 19 June 2019, the date of incorporation of Archis Scaffolding Solutions Ltd. Start and Nature of Engagement[10]The Tribunal found that Mr Lik began working for Archis Scaffolding from the date of its incorporation (19 June 2019).[11]There was no TUPE transfer from any previous company, but Mr Lik was involved in the set-up and early operations of Archis Scaffolding, with his role integral to the business. Absence of Written contract[12]Although there was no written contract until a late draft was produced, I found that the absence of a written contract did not preclude the existence of an employment relationship, given the substance of the working arrangements. Control, Subordination, Personal service and Integration[13]Mr Lik was appointed as a director and worked under the direction of Matthew Warner, who was the controlling mind of the company. Mr Lik was subject to the control of Matthew Warner, was not in business on his own account, and was required to provide personal service.[14]The evidence showed that Mr Lik was expected to be available for work as required, often working long hours and being the public face of the company, which indicated a high degree of integration into the respondent's business.[15]There was an ongoing expectation that Mr Lik would perform work for Archis Scaffolding and that the company would pay him for that work.[16]Payments were made regularly (albeit with some periods of non-payment), and the respondent conceded that there was an obligation to pay salary and make pension contributions.[17]The respondent's own evidence and concessions at preliminary hearings supported the conclusion that Mr Lik was an employee. Preliminary Hearing Judgment[18]A previous preliminary judgment (by Employment Judge Knight) had already determined that Mr Lik was an employee throughout his engagement, and this was not challenged at the final hearing. The dates of employment had not been determined prior to the final hearing.[19]There was no TUPE transfer from Harlequin or any other company.[20]The claimant’s employment ended on 2 November 2020, when he was dismissed by Matthew Warner on behalf of the respondent.[21]There was no written contract provided to the Claimant until a draft was issued in October 2020, which did not reflect all agreed terms.[22]The agreed salary was £4,000 net per month (with tax and NI to be paid by the respondent) until August 2020, and £5,000 gross per month for September and October 2020.[23]The claimant was not paid for the period 19 June 2019 to November 2019, save for a £500 payment in summer 2019 and £3,000 in December 2019.[24]From March 2020 to August 2020, the claimant was paid £4,000 per month, increasing to £5,000 per month for September and October 2020.[25]There was no binding contractual entitlement to a company car, bonus, or shares.[26]The claimant did not establish entitlement to unpaid holiday pay or overtime.[27]The respondent conceded failure to provide written particulars of employment and pension contributions. Conclusions on the Issues Liability[28]The claimant was an employee of the respondent throughout the relevant period.[29]The respondent is liable for unauthorised deduction from wages, as the claimant was not paid the agreed sums for certain periods.[30]The respondent is liable for failure to provide written particulars of employment and pension contributions. The respondent conceded the entitlement to pension contributions.[31]The claimant was dismissed without notice, amounting to wrongful dismissal.[32]The claims for a company car, bonus and unpaid holiday pay are not made out and are dismissed. The claim for shares was dismissed on withdrawal.
Remedy
[33]In March 2024, I found there was a debt owed for unpaid wages. However, the decision on the precise amounts was deferred pending receipt of additional evidence.[34]I directed that if the outstanding matters could not be resolved between the parties, they were ordered to provide the claimant’s tax return for 2019–2020 and provide submissions on the issues on remedy including the appropriate award for failure to provide written particulars.[35]The issues on remedy were decided on 20 September 2024. Salary and Benefits[36]The claimant was entitled to a net monthly salary of £4,000 from commencement of employment on 19 June 2019 until termination. This equates to a gross monthly salary of £5,671.67 and an annual gross salary of £68,000.60.[37]Between 19 June and November 2019, the claimant received only £500, and thus £30,520 arrears.[38]In respect of December 2019 until and including February 2020. In December 2019, £3,000 was paid, resulting in an underpayment of £2,671.67. January 2020 saw no payment at all. February 2020 saw £4,000 paid, leaving an underpayment of £1,671.67. There was therefore a further £10,015.01 for this period.[39]For the final six months of employment, whilst net sums were paid, the respondent failed to remit tax and national insurance contributions (£10,030.02). The respondent failed to provide one-week statutory notice (£1,417.91 gross).[40]The documentary evidence identified that some smaller sums were paid to Mr Lik during the relevant period, however it was not suggested by the claimant or respondent that any of these payments related to wages and I was satisfied they were not.[41]The total arrears is therefore £51,982.94 (£50,565.03 plus £1,417.91) not including the failures of the Respondent to remit tax and national insurance contributions. Pension Contributions[42]The respondent failed to make the required 3% pension contributions. Based on the gross monthly salary, this would have amounted to approximately £170.15 per month, totalling £2,041.80 annually. Cap on Damages[43]The Tribunal is bound by the statutory cap of £25,000 for breach of contract claims under section 3 of the Employment Tribunals Extension of Jurisdiction Order 1994. Although the claimant’s actual loss exceeds this sum, the Tribunal cannot award more than £25,000. Additional Award[44]For failure to provide a written statement of particulars, I award four weeks’ pay, capped at the statutory maximum of £525 under section 38 of the Employment Act 2002. This amounts to £2,100. Payment Direction[45]The respondent shall pay the sums awarded directly to the claimant. I make no direction regarding tax or national insurance liabilities. The claimant was directed to seek guidance from HMRC regarding any implications. Preparation time order[46]The Tribunal is not a costs-based jurisdiction. Costs orders are exceptional and governed by Rule 76 of the Employment Tribunal Rules of Procedure 2013. Reason for Costs Order[47]I find that the respondent acted unreasonably in its conduct of proceedings, causing delays on 27 and 28 September 2023. Approximately 830 pages were introduced late, necessitating adjournment and additional preparation. Calculation[48]I consider three hours’ preparation time reasonable at £41 per hour, totalling £123. This sum is payable by the respondent to the claimant within 14 days. Adjustments for Mental Health[49]The Tribunal notes the principal witnesses made disclosures of anxiety and depression and the respondent’s witness of additional time requirements. Adjustments were made during the hearings, including provision of breaks and additional time for submissions. No further adjustments were requested or indicated at the time.[50]Parties have had to wait a long time for my written reasons for my judgment. I am sorry for this. I have not been working for an extended period of time due to serious health problems and injury.