Mr J Joseph v Kuklous Healthcare Ltd and Mr U Qureshi: 3301928/2023
JUDGMENT
[1]The Tribunal finds that the claimant’s claim for unfair dismissal lacks jurisdiction as the claimant had less than 2 years employment.[2]The claimant’s claim for unfair dismissal is dismissed.[1]The Tribunal finds, in accordance with Part II of the Employment Rights Act 1996, that the claim for unauthorised deduction from wages is well-founded. The Respondent failed to pay the wages properly payable to the Claimant in respect of the period 1 – 8 February 2023 in the gross sum of £29.92.[2]All other parts of the claim are not well-founded and are dismissed.REASONS
[1]The claimant’s claim was for unfair dismissal, and unlawful deduction of wages, for unpaid annual leave. The claimant’s claim was brought under Section 13 (I) and Section 94 of the Employment Rights Act 1996.[2]The claimant was employed as the Registered Manager and The Nominated Individual for Kuklous Healthcare Limited.[3]The first respondent provided community-based, domiciliary adult social care services The Second respondent Mr Qureshi is the director of Kuklous Healthcare limited.[4]The claimant was appointed on or about 1 April 2021 as registered manager and nominated individual, he was dismissed on 8 February 2023.[5]The claimant’s claim is that his dismissal was unfair; he also asserts that his employment begun earlier that 1 April 2021.[6]The respondent denied the claimant’s claim in its entirety asserting that he was not an employee and also in the alternative if he was the Tribunal lacked jurisdiction as he had not met the two years’ qualifying period to bring a claim. The procedural history[7]The claimant applied for ACAS early conciliation. On 16 February 2023 the early conciliation period ended on 17.02.23 and a certificate was granted.[8]The claimant issued his ET 1 on 17 February 2023. A Notice of claim, from the Tribunal provided that the Respondent submit a response. The Respondent filed a response on 28 March 2023.[10]On June 2023 the Tribunal ordered that the matter be listed for a preliminary hearing to determine (i) Whether the claimant was an employee of the claimant. (2) If so whether Mr Joseph had two years of service, or in the alternative lacked jurisdiction to bring this claim.[11]The matter was listed for a preliminary hearing on 15 October 2023 to determine the issues below.The Issues
[12]The issues have been set out as I understood then to be, and which I consider relevant, in reaching this decision. Whether the claimant was an employee; Whether the claimant may bring unfair dismissal proceedings. By virtue of having 2 years length of service; Whether, if the claimant was not an employee, the claimant was a worker in accordance with Section 13 of the Employment Rights Act 1996. The Hearing AttendanceThe Hearing
[13]The hearing was held at Wafford Employment Tribunal. The claimant Mr John Joseph was in attendance supported by Mr Holder. Ms Dola Ajibade representative was in attendance on behalf of the first and second respondent. Mr Quereshi the second respondent and Mrs Quereshi were also in attendance. The Background[14]The Claimant was employed as the registered manager Registered by the Care Quality Commission(“CQC”) and the nominated individual (registered by the CQC), his application to the CQC stated that he worked with the company from March 2021.[15]Dr Qureshi, the second respondent, is the director of the company. The company provides community-based adult social care services in the community (Domiciliary Care Services.)[16]The terms of the claimant’s employment were that he received a salary of £35,000 PA. An oral term of his contract provided that he would receive a 5% share of the company. However, it was a term of the contract that he would forfeit or lose his shares if he left the company. It was accepted that he received additional or separate renumeration from 23 February 2021. The claimant’s case was that he was employed from that period, whereas the respondent’s case was that this renumeration was paid for consultancy prior to the company being established.[17]There was a dispute as to whether the claimant resigned or was dismissed and what circumstances led to the claimant’s contract ending.The Evidence
[18]The Tribunal was provided with a bundle of 168 pages from the first and second respondent together with additional documents from the claimant. The claimant provided an unpaginated bundle with a set out separate attachments, he also provided an additional bundle in a similar format including a witness statement from himself and Mr Holder. The documents provided by the claimant included the heads of contract, What's App messages and bank statements from the claimant’s HSBC bank account and an application to the Care Standards Commission to become registered as manager by the CQC. Together with a witness statement from Mr Joseph.[19]In his statement, Mr Joseph asserted that he was employed by the first respondent from 27 January 2021, he stated that his role was to set up the respondent company, by applying for CQC registration, recruiting staff and promoting the company.[20]His evidence was that he had met the second respondent Mr Quereshi whilst employed as the registered manager of supported living accommodation and that the second respondent worked with patients there as a psychiatrist. He had been invited to work for the second respondent who had expressed an interest in his undertaking the role. The claimant’s evidence was that Mr Quereshi had been impressed with his management of the supported accommodation.[21]In his evidence he set out that although he was undertaking work for the second respondent, he remained employed by his previous employer up until 25 March 2021[22]He told me that on 31 March 2021 he was paid £5000.00 for IT. The respondent’s case was that this and other earlier payments to the claimant were made for equipment and expenses for setting up the company. On 8 June 2022, the claimant resigned for the first time. I find that his resignation was not accepted by the respondents and the claimant continued to work for the respondent and remained the nominated individual with the respondent’s company.[23]Mr Joseph in his witness statement set out that he was concerned that the second respondent employed his (the second respondent’s) relative to work in the office. The claimant alleges that he had concerns about the second respondent employing family members who were not qualified or who lacked DAB checks.[24]In his witness statement he set out that he made a disclosure to the CQC and Brent Safeguarding board on 10 January 2023, and resigned on that date, giving notice with effect from 15 March 2023. The claimant set out that he had 4.5 weeks holiday and he indicated that he intended to take his holiday starting on 5 January 2023. By email he was asked to cancel his holiday to hand over his work. He declined to cancel his leave. On 8 February 2023, he received a letter from the respondent that the respondent was terminating his contract with immediate effect.[25]On 15 February 2023, the claimant was expected to be paid his final salary and holiday pay in the sum of £2917.15 and an additional 3.5 weeks; holiday pay. He was informed by the second respondent that this sum would not be paid as he had breached the terms of his contract.[26]His claim was for unfair dismissal, breach of contract and non-payment of wages.[27]The claimant provided copies of his bank statement to support his claim that he had been paid wages prior to 1 April 2021.[28]Ms Ajibade set out on behalf of the respondents the respondents’ joint submission that the claimant was a self-employed consultant and that he had undertaken work in connection with setting up the company on behalf of the respondents and that any sums were paid they were paid in connection with this consultancy and also for equipment. She further submitted that if the tribunal found that the claimant was an employee the tribunal did not have jurisdiction as the claimant had worked for the respondents for less than the required two years. She submitted that there was no evidence that the claimant had worked for the respondent for 2 years. The Law and the issues[29]Complaints to [employment tribunal]. 30. 23 (1) A worker may present a complaint to an [employment tribunal] (a) that his employer has made a deduction from his wages in contravention of that section as it applies by virtue of section 18(2) Section n employer shall not make a deduction from wages of a worker employed by him unless— (a)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(b)the worker has previously signified in writing his agreement or consent to the making of the deduction. Section 108 Qualifying periods of employment Section 94 does not apply to the dismissal of an employee unless he is employed for a period of not less than [two years ending with the effective date of termination. Was the claimant a worker within the meaning of Section 23 of the Employment Rights Act 1996.[31]The relevant terms of the claimant employment are set out in the heads of engagement at page 159 of the bundle and was dated 23.02.21. In reaching my decision I considered paragraphs 2, 3 and 7 of the heads of engagement ( although I have not cited the specific terms), At paragraph 10 of the heads of engagement it states-:” ...It is your responsibility, and you testify that there is no conflict of interest with your current employer”.[32]The agreement further stated that the full employment/ consultancy contract of will be sent to you in due course no other terms were provided. It was submitted by the claimant that he was in fact an employee rather than a consultant and that the respondent had control over how and when he worked.[33]Ms Ajibade on behalf of the respondent submits that the claimant was a consultant and that as such he was not a worker within the meaning of The Act. I am satisfied that the claimant although referred to as a consultant was an employee. I was satisfied that although the respondent referred to the claimant, Mr Joseph as an employee he was previously granted and took annual leave for which he was paid. That he was required to carry out the duties and responsibilities as a registered manager (a role required by the Care Quality Commission) As an employee. Accordingly, I am satisfied that the claimant was an employee within the meaning of the act and is entitled, subject to the merits to bring a claim for non-payment of wages. Whether the claimant has jurisdiction to bring unfair dismissal proceedings. By virtue of having 2 years length of service[34]I have considered the documents before me, in his application before the Care Quality Commission the claimant provided information that he was an employee of Care Advocates Limited up until March 2021, given that this information was provided to the CQC, I have no reason to look behind it. I am satisfied that the Claimant was employed by the respondent, sometime after March 2021. However, I heard and accepted evidence that work was undertaken by the claimant for the respondent prior to these dates. This included various aspects of setting up the company such as arranging the office registering with the CQC and putting policies together. As a result he was renumerated for this on 31 March 2021, and as such I find that prior to his employment for a limited time he was a consultant who assisted to set up the company and this included some assessment of clients.[35]The claimant was due to start his employment on 1 April however he started earlier due to the previous post holder leaving. I have considered the evidence that the claimant was carrying out assessments by 28 February 2021. Accordingly I have determined that although the claimant was carrying out such work, he remained employed by Care Advocates Limited until March 2021.[36]Although there was no formal start date, I find that his start date did not occur until the beginning of March 2021. The claimant was dismissed on 8 February 2023 with immediate effect. The claimant’s claim was for unfair dismissal, accordingly, as he does not have the required 2 years' service, I find that the Tribunal does not have the jurisdiction to hear the claim brought for unfair dismissal.[37]I have noted that the claimant’s claim was not for an automatically unfair dismissal for a protected disclosure. Accordingly his claim for unfair dismissal is dismissed for want of jurisdiction. JUDGMENT having been sent to the parties on 19 February 2024 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided.The Evidence
[1]The Claimant was employed by the Respondent as a manager until his dismissal on 8 February 2023. He brought several claims against the Respondent. His claim for unfair dismissal was dismissed by Employment Judge Daley after a hearing in October 2023. The Judge found that the Claimant was an employee of the Respondent (a point that had been in dispute) but had not been employed for the qualifying period of two years to bring such a claim. The remaining claims for me to determine were a complaint of wrongful dismissal/unpaid notice pay, unpaid annual leave, unpaid wages and/or breach of contract relating to the non-payment of other contractual entitlements, notably a portion of company profits and an allocation of company shares.[2]Employment Judge Daley provided written reasons for their decision on 11 March 2024, which outlines much of the background facts relating to the parties’ employment relationship. I will not repeat that here.The Issues
[3]The issues before me were discussed at the outset of the hearing and they were agreed as follows.2.1 In relation to notice pay, whether the Claimant was contractually entitled to one weeks’ notice or one months’ notice.2.2 In relation to holiday pay:2.2.1 whether the Claimant was entitled to statutory minimum holiday pay or to seven and a half weeks of paid holiday; and2.2.2 how many days of paid leave the Claimant had taken during the leave year starting 1 April 2022.2.3 In relation to the claim for arrears of pay, whether the Claimant had been properly paid for the month of February 2023.2.4 In relation to the other contractual entitlements:2.4.1 whether the Claimant was entitled to a share of profits and to what extent; and2.4.2 whether the Claimant had an entitlement to an award of company shares.2.5 Whether an award under s.38 of the Employment Act 2002 would be appropriate for any failure of the Respondent to provide a statement of employment particulars to the Claimant.[4]In deciding these issues, I was presented with a bundle of documents extending to 119 pages (121 including the index). When I refer to pages in the bundle in my judgment, I have sought to refer to the numbered pages of the bundle.[5]I heard evidence from three people: the Claimant, the Director of the Respondent (Mrs Qureshi, the “Director”), and the owner of the Respondent company (Dr Qureshi, the “Owner”) who had had extensive practical involvement in the appointment of the Claimant and possibly some practical oversight of the running of the company. Both parties also made submissions, and I am very grateful to them all for their contributions and their cooperation.The Facts
[6]In determining some of the issues, I must make findings of fact. When I do so, those findings are on the balance of probabilities, taking account of the statements that I received, the evidence that I heard and the documents that were produced and presented to me in the bundle.[7]It became clear that there were certain documents that had not been provided to the Tribunal, whether intentionally or because they cannot be located. Accordingly, I made my findings based on the information available.[8]As to the beginning of the parties’ relationship, an email at page 51 of the bundle is entitled “Head of Terms”. This was an email from the Owner to the Claimant. The email begins: “As per our discussions, please find below the draft head of terms we agreed in the various conversations in the job offer as manager and also in developing a partnership for the supported living business in London”.[9]It is clear that various prior discussions had taken place between the Owner and the Claimant, which concurred with the oral evidence I heard. The parties had clearly agreed to enter into some form of relationship to establish a new supported living operation in London. The Respondent wished to specialise in providing supported living services to people with sometimes very severe mental health conditions.[10]There was much debate at the hearing (and prior) about the Claimant’s precise role and the terms of his relationship with the Respondent. Employment Judge Daley has found that the agreement between the parties was one of employment. The parties before me today have accepted that finding and I proceeded on that basis. Nevertheless, it is important to recognise that this decision has caused some difficulty in determining the issues before me because the parties were often attempting to piece together the past as if they had both considered from the outset that they were in an employment relationship. In reality, it is unclear that that was in fact the parties’ initial understanding, certainly as far as the Respondent was concerned.[11]One such difficulty was establishing the terms of the parties’ contract of employment. Again, there was much debate at the hearing about what those terms were. Ultimately, I place greatest weight on the email at page 51, as this is a contemporaneous, objective, and relatively detailed record of the terms of the job offer. The parties had clearly entered into an agreement for the Claimant to work for the Respondent. He proceeded to do so for close to two years. I was presented with no other documents that explained the terms of employment. Indeed, the parties seemed subsequently to abide by the terms that were laid down including as to pay of £35,000 a year. Perhaps unsurprisingly this was confirmed towards the very start of the “Head of Terms” that had been provided to the Claimant.[12]The email also recorded a start date of 1 April 2021 and a specified workplace. Various other terms that one might expect to find in a contractual agreement were laid down.[13]Accordingly, I find that this email records the agreement between the parties and constituted their employment contract, albeit the employment may have began slightly earlier than 1 April 2021, as found by Employment Judge Daley. I need not make any finding as to the precise date.[14]The terms were incomplete in the sense that they did not address annual leave, nor did they address, for instance, periods of notice. Those issues are in dispute and the written contract does not provide much assistance in determining those claims.[15]However, other clauses are very relevant to the claims for entitlement to a bonus and shares. Notably clause 6 is as follows: “KHC [the Respondent] offers you a 5% share of the company in lieu of your commitment and ongoing work in ensuring the smooth and commercially successful running of the company. The shares will be issued, pro rata, over a period of five years with an undertaking by you that if for any reason you leave the company or the business relationship between you, and the company is terminated, you agree to forfeit all your shares fully back to the company, without any financial or legal implications to the company”.[16]Clause 9 is as follows: “You will take part in a bonus scheme of payment by the company to you, up to 5% of your annual agreed remuneration, after a successful and viable financial year, starting from year 2 of the start of trading of the company”.[17]The Claimant did not actively pursue a claim for a bonus in accordance with clause 9 at the hearing.[18]As there are no express terms relating to annual leave and notice pay, I need to determine whether there were in fact any terms relating to these issues and what they were.[19]As to annual leave, I begin by finding that the Claimant was given a very high level of autonomy to establish and run the company. He was given very many tasks and duties, perhaps rather too many. The Claimant contends that the Respondent afforded him too great a responsibility for a single individual. I make no finding about this; it is not an issue I need to determine. However, it shows that the parties’ evidence was consistent. The Claimant was effectively left to manage many parts of the business without much support or oversight. This is one of the reasons the Respondent submitted that it considered him a contractor rather than employee.[20]In line with this autonomy, the Director’s evidence was that the Claimant’s annual leave arrangements were unmonitored. The Claimant regularly informed the Director when he was going to be on leave (some emails demonstrate this, although it doesn’t seem to have been an invariable and consistent practice). This is only to be expected to ensure the Director was aware the business was being managed in the Claimant’s absence. However, there was no evidence the Claimant required the Director’s consent or that she regularly responded, or recorded or queried the leave taken. In fact, when the relationship soured, the Director was expressly unaware of the amount of leave taken and had to ask the Claimant for that information (see p.98 of the bundle).[21]In practice, it appears to me that the Respondent was largely content for the Claimant to take leave when he chose to do so, so long as the business was being effectively run. This also suited the Claimant. It does not mean, however, that there was a contractual agreement to any set period of leave.[22]The principle of holiday pay is clear in statute, commonplace and well regulated. In the absence of any contrary agreement, if the parties had truly realised they were entering into an employment relationship, it is most likely they would have intended the statutory framework to govern the Claimant’s paid annual leave entitlement. In any event, there is no good reason for me to find otherwise; in circumstances where legislation comprehensively addresses annual leave, it is the obvious starting point, and, in this case, the end point. Just because the Claimant may have taken considerably more leave during his first year of employment, and indeed had already taken in excess of 5.6 weeks’ leave in his second year (points I will come on to), does not mean that there was any contractual entitlement to it. An employer can grant as much leave, paid or otherwise, to its employees as it wishes to, but is never required to go beyond its contractual agreement. If taking additional leave had become a regular and consistent occurrence, and the Respondent had known and consented to that practice (expressly or by implication), the situation might be viewed differently. In this case, the Claimant had not yet completed 2 full years of employment. The Owner’s uncontested evidence was that its profitable activity only genuinely began 5-6 months after it had been established, with its first patient only being taken into its care in November 2021. Prior to then, he admitted that limited work was required of the Claimant, so there was no reason at all to query any leave he was taking, even had the Respondent been minded to do so. It was in fact not minded to principally because it considered the Claimant to be self-employed and entitled to take leave whenever he chose. In my view, the best interpretation of the situation is that the Respondent permitted the Claimant to take additional paid leave pursuant to an ad hoc arrangement, but this was not sufficiently formalised to constitute a lasting variation of the parties’ employment contract.[23]As to the amount of leave that the Claimant actually took, it was agreed at the hearing that the Claimant took seven and a half weeks of annual leave in his first year of employment to March 2022.[24]The amount of annual leave the Claimant took in his second leave year, March 2022 – 2023, was in dispute. I find as a fact the following:21.1 The Claimant took 7 days of annual leave between 10 May 2022 and 19 May 2022. This was agreed by the parties and is recorded in an email provided at page 84 of the bundle.21.2 I find, on the balance of probabilities, that he also took a week of leave in September 2022. The Claimant recorded as much himself in an email provided at page 87 of the bundle, which was sent only a few months later on 19 January 2023. The Claimant suggested at the hearing that he had not in fact taken any leave, but I place greater weight on the written and more contemporaneous record of what he wrote had happened. I find the Claimant’s reference to a week’s leave was to 5 working days.21.3 The Claimant also took 2 weeks of leave in November 2022. This was agreed between the parties to represent 10 working days and was referred to in an email at page 85 of the bundle.21.4 I find that the Claimant took a further 2 weeks of leave in December 2022. He refers to this in the email at page 87 of the bundle. In the statement the Claimant attached to his claim form, he suggested that he had been on leave for 3 weeks. However, for similar reasons to my finding as to the leave he took in September, I place greater weight on the Claimant’s more contemporaneous written record.[25]Adding all of those periods together, I find that the Claimant took six weeks’ worth of paid annual leave and two days, i.e. 32 days, or 6.4 weeks, in the leave year.[26]As to notice pay, for similar reasons there is no obvious reason to depart from the statutory provisions as laid down in s.86 of the Employment Rights Act 1996 (the “ERA”). Accordingly, the Claimant would normally have been entitled to one week’s notice. That the Claimant chose to provide a longer period of notice when he resigned does not indicate that the Respondent would have been obliged to do likewise.[27]The Claimant proffered his resignation on 29 January 2023, stating his “final day with the company will be 15th March 2023” (p.54 of the bundle). However, in the intervening period, at a handover meeting on 8 February 2023, the Claimant was summarily dismissed for gross misconduct.[28]There is much debate about what actually happened at that meeting and the parties’ recollections differ markedly about what was said and what was done. What is clear to me is that at the conclusion of the meeting, the Claimant retained some company property including a company phone containing a directory of important contacts and some keys to the Respondent’s premises, despite having been asked to return them. It is possible that he retained some other items of company equipment and failed to disclose computer access passwords, however I need not determine this.[29]In making this finding I placed greatest weight on an email from the Director of the same day, 8 February 2023, provided at p.102 of the bundle. The email confirmed the Claimant’s dismissal and stated as follows: “At the meeting today, I asked you to hand over the keys of the company’s office and any other company property in your possessions to the company, but you refused in front of witnesses. It is concerning that you did not follow the reasonable request from the company. Due to your not handing back the office keys of the office, we had to change the office locks and alerted the landlord of the building that you are not welcomed to our office in Golders Green or at 8 Yeats Close”.[30]In an email dated 20 February 2023, the Claimant wrote to the Respondent to say that he had given “all Kuklous Items including office keys, Yates Close keys in my possession to deliver to you since last week”. 20 February was a Monday, the previous week commencing on Monday 13 February, at least five days after the meeting on 8 February 2023.[31]Apart from these emails, I note that the Respondent states that it proceeded to employ a locksmith to change the locks and incurred expenditure on that. It also states that it incurred expenditure on an IT specialist to attempt to access the Respondent’s computers, with costings of these services being given in the Respondent’s counter schedule of loss.[32]As an indication of the breakdown in trust that had happened by the time the Director sent her email on 8 February, she also wrote: “If you still try to do so as you threatened entering the company office, it will be a criminal offence and we will pursue the prosecution with full force of the law”.[33]Plainly, coming to write an email in those terms clearly demonstrates that what happened at the meeting on 8 February was a fairly heated discussion. That has also been borne out by my experience of the hearing today where the parties both agree that it was a confrontational meeting and they both retain quite severe grievances about each other’s conduct in the run-up to and at that meeting. Issues and Conclusions Issue 1 – Wrongful Dismissal/Notice Pay[34]The parties put forward various positions before me. The Claimant sought pay for a month’s notice, believing that to be a term of his employment contract. The Respondent’s initial position was that only one weeks’ notice had to be paid in accordance with s.86(1)(a) of the ERA. Its view was that that period ran from 29 January 2023, the date of the Claimant’s resignation.[35]On this issue, I have found that the Claimant was entitled only to one week’s notice.[36]However, in truth, this finding is of limited relevance. The Claimant had proffered his resignation with around 6 weeks’ notice, which was accepted. Most importantly, the Claimant was summarily dismissed on 8 February, during his notice period. That was the effective date of termination of his employment contract.[37]The real issue is whether any notice pay was payable at all. If the Respondent was entitled to treat the Claimant’s actions on 8 February as a repudiatory breach of the terms of his employment contract, notably the implied term of trust and confidence, it would have been entitled to treat the contract as terminated with immediate effect. No notice pay at all would be due (noting s.86(6) of the ERA).[38]As mentioned above, the content and nature of the meeting on 8 February is distinctly unclear. However, the thrust is that the parties’ relationship had broken down. One important fact is that the Claimant failed to return sensitive company property, including a mobile phone and keys, on the Respondent’s direct request and without reasonable excuse. Does this fact alone amount to a repudiatory breach of his employment contract? I find that it does. The Respondent is a company registered with the Care Quality Commission, holding considerable responsibilities in relation to very vulnerable adults. The Claimant was fully aware of this. The loss of important contact numbers, security of access to the Respondent’s premises, and data security are very important matters to any company, but especially one like the Respondent. The Claimant’s failure to comply with a straightforward and clear instruction relating to important company property is, in itself, a very serious matter and I accept that it amounts to a fundamental and repudiatory breach of the implied term of trust and confidence. The Respondent was entitled to act upon that breach immediately by terminating the Claimant’s employment without notice.[39]Accordingly, the claim of wrongful dismissal/entitlement to notice pay is not well-founded and must be dismissed. Issue 2 - Arrears of Pay[40]As to the next issue, in light of my finding about the notice period it is not truly in dispute. There was no dispute that the Claimant had been paid for the month of January and that he had been paid up until 8 February 2023. However, during the course of the hearing, the method of calculation of the amount of pay due for February had been brought up. Although there might be several ways of calculating the appropriate amount due, the methodology put forward by the Respondent was that it divided the Claimant’s regular monthly pay by 30 to achieve a daily rate, and then multiplied this rate by 8 days. I found that to be inappropriate in this case. It does not focus on working days, nor does it take account of the fact that February only consisted of 28 days.[41]An alternative method of calculation is to take the annual salary of £35,000, divide that by 52 to obtain a figure for a week’s pay (£673.08), divide that by 5 which is the number of days worked each week (£134.62), and then multiply that daily rate by the 6 days worked in February (£807.69, allowing for rounding errors). The Respondent agreed with that methodology and the result was that £807.69 was due to the Claimant for February 2023. The difference between £807.69 due and £777.77 that had already been paid is £29.92 and that is the sum that I ordered the Respondent to pay to the Claimant on account of his pay for the period 1-8 February 2023.[42]To this very limited extent the claim to have suffered an unauthorised deduction from wages in accordance with Part II of the ERA is well-founded. Issue 3 – Holiday Pay[43]As to the third issue before me, holiday pay, I have found that the Claimant was entitled to 5.6 weeks of leave in the year from March 2022. He had taken 6.4 weeks by the date of his dismissal, which was one month prior to his second anniversary in the role. The Respondent submitted that he had taken bank holidays off work in addition and been paid for those days. I don’t need to make any findings on that point. Either way, he had exhausted his leave entitlement and was not due any further payment from the Respondent.[44]The claim for holiday pay is therefore not well-founded and is dismissed.[45]There might be an argument that the Claimant was “overpaid” for leave and accordingly that the overpayment could be recovered or set-off against the award for unpaid wages. However, I do not consider that appropriate. As mentioned above, there is a difference between the contractual entitlement to leave, and the fact that the Respondent permitted the Claimant to take leave in excess of his entitlement. I have found that the Respondent permitted the Claimant to take the leave he took and accepted to pay him for it. That was a separate agreement between the parties that is not in dispute. It is not for me to interfere with that agreement by applying any set-off, even though the amount of unpaid wages is relatively minimal. Issue 4 – Other Contractual Entitlements[46]By the time of the hearing, the only real dispute was as to an alleged entitlement to shares. The Claimant did not actively pursue his claim to be entitled to a bonus in accordance with clause 9 of his contract. He was right not to do so in my view; the contract was clear that the clause only became operative after 2 financial years had elapsed, the second of which must have been profitable. The Claimant’s employment did not last those 2 years.[47]The claim therefore was for an allocation of company shares allegedly due to the Claimant in accordance with clause 6 of his contract. The Claimant contended that he should have been granted 5% of the shares of the company every year for the first five years of its operation. The Respondent’s position was that the clause provided for a 5% share overall to be allocated to the Claimant at the rate of 1% per year, that being its understanding of the term “pro rata”.[48]I have considered this issue by objectively analysing the wording of the clause in question. It seems to me entirely clear that the Respondent is correct; the overall offering was 5% of the company’s shares to be allocated to the Claimant at a rate of 1% per year over the first five-year period. Accordingly, the Claimant would have been due 1% of the shares of the company after his first year of employment.[49]However, the matter does not stop there because the clause also states that the parties agree that if the Claimant were to leave the company, he would “forfeit all [his] shares fully back to the company, without any financial or legal implications to the company”. Although the Claimant never in fact sought or received his shares, they would have been forfeited if he had. The Claimant has therefore suffered no financial loss. None was proven, and I accepted the Respondent’s evidence that no dividends had been paid out during the period of the Claimant’s employment (if ever).[50]Accordingly, these complaints are also not well-founded and must be dismissed. Issue 5 - Failure to provide written statement of employment particulars[51]As to the final point in dispute, the Respondent failed to provide the Claimant with a written statement of employment particulars. Although some terms were made clear in writing, others required by s.1(4) of the ERA were not. The sanction for such a failure is to make an additional award (s.38 of the Employment Act 2002). However, s.38(5) provides a general exception to the rule where there are exceptional circumstances which would make an increase to the award unjust or inequitable.[52]In this case, the parties were clear about a number of the important terms and conditions of their employment relationship. They were recorded in writing in the “Head of Terms” emailed to the Claimant. The Claimant never seems to have sought, prior to this point, any further written particulars or details. He has directly benefitted from this rather informal arrangement by enjoying the flexibility and autonomy he was given, for instance by taking significant amounts of annual leave apparently with no restriction. I also note that s.38 of the Employment Act 2002 only applies in circumstances where a claim has been successfully brought. In this case, in theory it has been as the Claimant has received an award. However, in reality he has been awarded a minimal sum, far below what he was seeking, and I doubt the Claimant considers he has been successful in any real sense. Had the Respondent not made a minor and perfectly innocent error in calculating the Claimant’s final instalment of wages, the claim would have been dismissed in its entirety. Taken together, I find these factors constitute exceptional circumstances that would make a further award both unjust and inequitable.