Employment Judge Misra KCIn person for claimantNot represented for respondentDate 7 January 2025
JUDGMENT
[1]The following complaints are well founded and succeed: a) Failure to provide a statement of initial employment particulars and itemised pay statement contrary to sections 1 and 8 Employment Rights Act 1996; b) Wrongful dismissal (breach of contract – failure to give notice of termination of employment); c) Series of unauthorised deductions of wages contrary to section 13 Employment Rights Act 1996 and. d) Breach of regulation 14 Working Time Regulations 1998 (failure to pay for accrued but untaken annual leave).[2]The Respondent must pay the Claimant the following compensation: Case Number: 3201459/2024 2 a) £730.88 representing 4 weeks’ pay under section 38 Employment Rights Act 1996; b) £182.72 for wrongful dismissal; c) £1,001.44 for unpaid holiday pay and d) £3,251.00 for authorised deductions. Total Award: £5,166.04.[3]If and to the extent deemed necessary by HMRC, if at all, the Respondent shall be liable for any taxation and National Insurance on the sums above. Employment Judge E Misra KC Dated: 7 January 2025 NoteReasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision. Public access to employment tribunal decisionsJudgments (apart from judgments under rule 52) and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Case Number: 3201459/2024 1 EMPLOYMENT TRIBUNALS Claimant: Mr. Dinesh Venkatesen Respondent: Mr. Rajan Aggarwal Heard at: East London Hearing Centre On: 07 January 2025 Before: Employment Judge Misra KC REPRESENTATION: Claimant: in person. Respondent: did not enter a Response, did not attend and was not represented.[1]The application has no reasonable prospects of success of being varied or revoked and must therefore be refused under rule 70(2) of the Employment Tribunal Procedure Rules 2024.[2]Judgment having been sent to the parties on 13 January 2025 further to a hearing on 7 January 2025 which the Claimant attended in person and which the Respondent did not attend (either in person or by a representative) having not entered a response, the Respondent subsequently requested written reasons on 16 January 2025. The Respondent has not entered any response to date, but on the basis that the procedural rules do not appear to bar a party from requesting written reasons the reasons for the judgment now follow. Case Number: 3201459/2024 2[3]The Claimant presented his ET1 to the Tribunal on 18 July 2024 further to a period of Early Conciliation from 9 June to 19 June 2024. The Respondent did not enter an ET3 in the prescribed form or at all and did not make any application for an extension of time in which to submit one. Further, the Respondent did not attend the hearing despite being on notice of the date, time and location of the hearing and communicating by email with the tribunal on 30 December 2024 to assert that the Claimant was self-employed in what appeared to be the only defence to the claims. The Tribunal determined that(i) reasonable steps had been taken by the Tribunal administrative function to inform the Respondent of the hearing,(ii) that there was no telephone number on record to make any further enquiries about the non-appearance at the hearing and that(iii) no reason had been given by the Respondent to suggest he wished to participate in the hearing to the extent permitted by the Tribunal if at all. The Tribunal considered it was in the interests of justice and consistent with the overriding objective to proceed to determine the claim (which was unopposed).[4]The Respondent has failed to respond to the Tribunal’s request to provide an explanation as to why he did not enter a Notice of Appearance (ET3) at any time prior to the hearing or why he did not attend the hearing having been sent Notice of the Hearing. The application for reconsideration is therefore determined without any knowledge of the Respondent’s position as to these matters.[5]To date the Respondent has not entered a Notice of Appearance (and an application for permission to do so out of time) and has failed to provide any sufficient basis to reconsider the judgment. Employment Judge E Misra KC Dated: 12 March 2025 Case Number: 3201459/2024 1 EMPLOYMENT TRIBUNALS Claimant: Mr. Dinesh Venkatesen Respondent: Mr. Rajan Aggarwal Heard at: East London Hearing Centre On: 07 January 2025 Before:
REASONS
[1]Judgment having been sent to the parties on 13 January 2025 further to a hearing on 7 January 2025 which the Claimant attended in person and which the Respondent did not attend (either in person or by a representative) having not entered a response, the Respondent subsequently requested written reasons on 16 January 2025. The Respondent has not entered any response to date, but on the basis that the procedural rules do not appear to bar a party from requesting written reasons the reasons for the judgment now follow.[2]The Claimant presented his ET1 to the Tribunal on 18 July 2024 further to a period of Early Conciliation from 9 June to 19 June 2024. The Respondent did not enter an ET3 in the prescribed form or at all and did not make any application for an Case Number: 3201459/2024 2 extension of time in which to submit one. Further, the Respondent did not attend the hearing despite being on notice of the date, time and location of the hearing and communicating by email with the tribunal on 30 December 2024 to assert that the Claimant was self-employed in what appeared to be the only defence to the claims. The Tribunal determined that(i) reasonable steps had been taken by the Tribunal administrative function to inform the Respondent of the hearing,(ii) that there was no telephone number on record to make any further enquiries about the non-appearance at the hearing and that(iii) no reason had been given by the Respondent to suggest he wished to participate in the hearing to the extent permitted by the Tribunal if at all. The Tribunal considered it was in the interests of justice and consistent with the overriding objective to proceed to determine the claim (which was unopposed).[3]The Tribunal considered the ET1 claim form and Schedule of Loss, and other documents provided by the Claimant and his brief handwritten statement. It then asked for further oral evidence from the Claimant (on oath) to assist the Tribunal in determining the claims.[4]Having done so, and in the context of what was essentially an undefended claim, the Tribunal found as follows. The Tribunal accepted the Claimant’s evidence which appeared credible and consistent with such documents as were available to consider at the hearing.[5]The Claimant was engaged as an employee within the meaning of section 230 Employment Rights Act 1996 (‘ERA’) by the Respondent who had been given the Claimant’s mobile number by a friend. (The Tribunal concluded he was an employee applying a multifactorial approach to the question and taking mutuality of obligation and control as the irreducible minimum required, but, at the very least, even if the Tribunal was wrong about that, the Claimant was providing personal service as a worker.)[6]The Respondent arranged for the Claimant to look after his elderly father, who has dementia and lives with his wife, on a week’s trial basis which was unpaid. The Respondent was pleased with how the Claimant had cared for his father and offered him a job as a carer undertaking personal care for his father, carrying out domestic duties such as cleaning and ironing and taking his father out on trips to stimulate and interest him. He asked the Claimant for various documents and information including his passport, proof of his right to work in this country, proof of address, proof of a DBS check and National Insurance number, and agreed to pay him per hour for the work he did at the rate of the National Minimum Wage plus £1.00 i.e. £10.42 plus £1. Case Number: 3201459/2024 3[7]The oral agreement with the Respondent was that the Claimant would work generally on Mondays and Tuesdays from 11am to 7pm at this rate of pay though some occasional flexibility might be needed as to the days. The Respondent also engaged another man to provide care for his father on other days of the week and there is a serious question mark as to the legality of that arrangement, and the true identity of that person whose name has been given variously as Vasanth and Rogith, after the police made enquiries.[8]The Claimant undertook other work for some 4 to 5 hours a week for another person, again as a carer, but this was not through a business and the Claimant has never operated a business in any of the jobs he has done since he moved to England in 2010.[9]Having considered the law (including the key authorities in this area of law which include: Uber BV v Aslam [2021] UKSC) and the evidence, the Tribunal concluded, applying the facts to the law, that the true relationship between the Claimant and Respondent was that of employee and employer within the meaning of section 230 ERA; there was sufficient mutuality of obligation and control for this to be the case, and all other indications were that this was a contract of employment for 16 hours a week. The Tribunal found that the belated attempts to characterise this as selfemployment in the Respondent’s email of 30 December 2024 were not based in evidence and were contrary to what was in fact the relationship; the email was an attempt to uphold a sham label of a contractor-client relationship. Aside from bringing his plastic apron and gloves to work, the Claimant did what his client’s wife and son asked him to do and the Tribunal rejected the contention that the Claimant ever provided anything other than personal service.[10]In fact the Respondent did not pay the Claimant at the rate agreed and paid him £480.00 into his bank account every four weeks without ever providing him with a written statement of his employment or any payslips.[11]After the police intervention in 2023, which was not prompted or caused by anything the Claimant did, the Respondent’s behaviour towards the Claimant deteriorated and became coercive and threatening in nature. That also explained why, as the C said, he ceased to press for payslips and a written contract, having first done so in March 2023, as he was fearful he would lose the job and suffer other consequences. He also felt a sense of loyalty to and worried for his elderly charge (the Respondent’s father) who was very fond of him.[12]Abruptly, the Respondent terminated C’s employment on 14 March 2024 in a message in which he said his father was moving into a care home. Case Number: 3201459/2024 4[13]By this time, the Claimant had taken no annual leave at all and had not been encouraged or indeed facilitated in doing so. Again, he was fearful of creating any conflict by pressing for annual leave. The Tribunal found that the Claimant’s statutory annual leave entitlement rolled over into the 2024 leave year.[14]The Respondent did not give the Claimant a week’s notice or make any payment in lieu. He also failed to reimburse the Claimant for travel expenses incurred in taking his father out on trips by bus or train – the Freedom Pass the Respondent’s father held could be used for free travel on public transport but it cost the Claimant approximately £10.00 a week to cover his own travel. As with other matters, the Respondent said he would ‘sort out’ monies owed to the Claimant later but he never did.[15]For the first time on 18 June 2024, the Respondent asserted that the C was selfemployed after the Claimant asked to be paid the balance of monies owed to him having regard to the National Minimum Wage. This was disingenuous and the Respondent failed entirely to discharge the basic responsibilities of an employer, which he was.[16]Accordingly, having taken all available evidence into account, the Tribunal found that the Claimant’s claims were well founded and succeeded.[17]Moving onto remedy, the Tribunal was assisted by a well drafted Schedule of Loss which the Claimant prepared with help from a free law centre service. The Claimant accessed this help before submitting his claim, which emphasises the vital importance of these sources of pro bono (free) legal advice and assistance to litigants in person, especially those who are economically or otherwise vulnerable.[18]The Claimant’s very low earnings were highly likely to place him within his personal tax allowance i.e., below the threshold where income tax applies. The Claimant confirmed this was the case.[19]The Tribunal accepted the Claimant’s evidence on loss and awarded him:(a) Wrongful dismissal – 16 hours x £11.42 = £182.72 (a week’s pay);(b) Unauthorised series of deduction of wages - £240.00 for the period 13 February to 31 March 2023 plus £2,336.00 for the period 1 April to 14 March 2024 plus £100 on a broad brush basis (for the extra £1 per hour for the hours worked as set out in Schedule of Loss);(c) Expenses (travel – as deducted wages) – £575’(d) Holiday pay - £1001.44 (adjusting the figures for the finding that the agreed rate was £1 over the National Minimum Wage) and Case Number: 3201459/2024 5(e) Failure to provide statement of terms (s.38 Employment Act 2002) – 4 weeks: £730.88. Total Award: £5,166.04