Mr M N Mazal v Corner Kitchen E7 Ltd: 3201925/2018
JUDGMENT
[1]The claims for no notice pay, holiday pay and arrears of pay are dismissed.REASONS
[1]This claim was brought to the Tribunal by the Claimant relating to work carried out for the Respondent’s company which operates as a restaurant known as Corner Kitchen, in Forest Gate, London.[2]The Claimant failed to attend the hearing. The Tribunal considered his Section 8.2 claim form setting out the basis of his claims.[3]The Respondent produced a bundle of documents running to 71 pages which included witness statements by Sultan Ahmed and Anthony Charlier together with various photographs apparently of the Claimant and recordings of text messages from a mobile telephone.[4]There was a separate witness statement from Anthony Chellingworth.[5]Based on the evidence and documents provided, the Tribunal found as follows:5.1 In May 2018 the Respondent advertised for a restaurant manager. The Claimant applied for the position and was found to have suitable skills and experience. A contract of employment was formalised and sent out to him but was not signed before commencing work by the Claimant. Mr Mazal, the Claimant, contacted the Respondent and stated that he preferred to work on the basis of being a consultant, being self-employed and to submit invoices rather than working under a contract of employment. The Respondent discussed this with the Claimant and agreed this basis which was further agreed by text message.5.2 The Claimant commenced work as manager on 21 May 2018 and submitted invoices in relation to days and hours worked. From then on he would decide what days and what hours he would work and he would submit invoices only for the time actually worked.5.3 An incident occurred where there was violence between the Claimant and another individual. Whilst this was being considered it came to light that the Claimant had been consuming the Respondent’s alcohol on the premises without the Respondent’s authority. The Respondent invited the Claimant to the premises to discuss the matter but the Claimant declined to attend. He did not thereafter carry out any more work for the Respondent.5.4 The Claimant then contacted the Respondent to say he considered he was entitled to pay for the time that he was suspended and that he was entitled to holiday pay and pay for notice of termination. The Respondent denied all these claims.[6]The Claimant was not present at this hearing to give any submissions or give any evidence or as to why he claimed he was entitled to the monies he was claiming. There were also no documents setting out precisely what was being claimed or the reasons for this.[7]The Respondent’s position is that the Claimant was not an employee; that he was a self-employed consultant. He had been paid for all work he had done. He was not entitled to holiday pay or sick pay. There was no provision for notice in the arrangement that was made with him. He had been paid everything that was due to him.[8]On the basis of the evidence available I find that the Claimant was not an employee of the Respondent. Although, a contract of employment had been prepared it was never completed before the Claimant commenced in the position as restaurant manager. He did so as a self-employed person. Accordingly, he had no right to sick pay or holiday pay. After the incident referred to above the Claimant was not formerly suspended. The reference he made to payment during suspension was set out in the employment contract, a contract which he did not enter into and which was not signed. Although he was not working and was sick following the violent incident he had no entitlement to sick pay. In addition, he had no right to accrue holiday pay. There was no express agreement in his consultancy arrangement as to notice.[9]Accordingly, all of the Claimant’s claims fail. He has not established a legal right to claim any further money from the Respondent.[10]The Claimant’s claims are dismissed.