Mr S Sulaiman v MoreCare Services (UK) Ltd: 3303391/2022 and 3303424/2022
EMPLOYMENT TRIBUNALS
Case No 3303391/2022, 3303424/2022
Between
Mr S SulaimanClaimantMoreCare Services (UK) LtdRespondent
Before
Employment Judge Richard WoodMr Middleton (instructed by Counsel) for claimantDate 5 November 2025
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21 The respondent has made unauthorised deductions from the claimant’s wages and is ordered to pay the claimant the sum of £32,343.31. JUDGMENT[1]The rule 21 judgment dated 19 May 2022 and sent to parties on 22 August 2022 is revoked and the respondent’s response is accepted.[1]This is a claim for unfair dismissal, redundancy payment, and unlawful deduction from wages. The claimant was employed by the respondent as a manager in a care home from 18th October 2019. It is agreed that at the relevant time, the claimant had two years service with the respondent. The claimant alleges that he was paid at part time rates (three days a week), when in fact he was working for five days a week. His claim is for the resulting shortfall in wages for the period March 2020 to February 2022. The respondent states that the claimant’s hours were reduced to three days a week with his consent to accommodate his educational commitments. He was therefore paid the correct amount until he was dismissed. This was the first claim in time, lodged with the Employment on 15th March 2023.[2]The claimant employment was terminated. There is dispute as to when this occurred. The respondent asserts that the claimant was dismissed on 21st October 2022. However, the claimant argues that, depending on the proper interpretation of the facts, his effective date of termination was either 26th January 2023 or 5th November 2022. The claimant asserts that he was an unfairly dismissal. The respondent says that it was fair on the grounds of redundancy arising from difficulties associated with the pandemic. This second claim was lodged with the Tribunal on 17th March 2023.[3]The respondent asserted that both claims were out of time under the Employments Rights Act 1996 (“the Act”). I heard this application remotely via 1 of 6 CVP on 23rd May 2023. I gave a brief extempore decision during the hearing. I have now been asked by the respondent to provide a full statement of reasons. Legal Framework[4]In relation to the claim for unfair dismissal, the appropriate section is 111(2)(b) of the Act which reads as follows: “111.— Complaints to [employment tribunal](1) A complaint may be presented to an [employment tribunal]1 against an employer by any person that he was unfairly dismissed by the employer.(2) [Subject to the following provisions of this section]2 , an [employment tribunal]1 shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”[5]In relation to the first claim for unlawful deduction from wages under section 13 of the Act, the applicable law in terms of time limits is to be found at section 23 of the Act, which reads as follows: “23 …. (2) Subject to subsection (4), an [employment tribunal]2 shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with—(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or(b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received. (3) Where a complaint is brought under this section in respect of— (a) a series of deductions or payments, or (b) a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. ….. (4) Where the [employment tribunal] is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable. 2 of 6 (4A) An employment tribunal is not (despite subsections (3) and (4)) to consider so much of a complaint brought under this section as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint.”[6]In essence, there is a 3 month period for bringing either of the two claims (subject to early conciliation). For claims lodged outside of the period, time can only be extended if it was not ‘reasonably practicable’ to meet the 3 month time period and, if so, can only be extended for such additional period as is reasonable in the circumstances. It is therefore a two stage test.[7]When a claimant tries to excuse late presentation of his or her ET1 claim form on the ground that it was not reasonably practicable to present the claim within the time limit, three general rules apply. Firstly, section 111(2)(b) (and its equivalents in other applicable legislation) should be given a ‘liberal construction in favour of the employee. Secondly, what is reasonably practicable is a question of fact and thus a matter for the tribunal to decide. The test is empirical and involves no legal concept. Practical common sense is the keynote. Thirdly, the onus of proving that presentation in time was not reasonably practicable rests on the claimant.[8]The term ‘reasonably practicable’ does not mean reasonable, which would be too favourable to employees, and does not mean physically possible, which would be too favourable to employers, but means something like ‘reasonably feasible’. Lady Smith in Asda Stores Ltd v Kauser EAT 0165/07 explained it in the following words: ‘the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done’. Findings and Reasons[9]As stated, I heard this application on 23rd May 2023. I heard evidence from the claimant, who adopted his witness statement which appears at page 57 of the bundle. He was cross examined by Mr Muirhead on behalf of the respondent. I had the benefit of reading an agreed hearing bundle which comprises 147 pages. I also had written submissions from Mr Middleton. I was assisted by helpful oral submissions from both advocates.[10]I find that the claimant was given a notice of termination of his employment dated 21st October 2021 [48], and received on 22nd October 2021. This was not in dispute. It is the respondent’s position that this brought the contract to an immediate end. If the said notice was to have that effect, it must, in my view, have done so clearly. In my judgment, it was not at all clear. It did not expressly indicate that it relied on the contractual clause permitting payment in lieu of notice. The claimant was entitled to two weeks notice. This was not in dispute.[11]The stated understanding of the author of the letter was that the claimant had not reached two years service, which the respondent now accepts was an error. The letter goes on to state: “Any outstanding wages will be processed with the normal payroll run following your last day of employment, at which time you will 3 of 6 receive your form P45”. Conspicuously, no final date of employment is mentioned. However, it does give the impression that it is not the day of the letter i.e. 21st October.[12]However, it is my judgment that the letter was a clear termination of whatever contract of employment existed between the parties. I find it brought the claimant’s employment to an end with effect from 5th November 2022 i.e. two weeks from receipt of the notice of termination.[13]I do not accept the claimant’s contention that his employment continued until January 2023. As I will go into in more detail below, I am satisfied that there was an ongoing relationship between the claimant and respondent, from which the claimant derived the impression that his work with the respondent might resume in some form. However, as a matter of strict contract law, the notice issued and accepted dated 21st October 2022 brought his employment to an end.[14]The claimant engaged in early conciliation with ACAS from 8th November 2021 to 19th December 2021. It was agreed by by the parties that the time for bringing a claim relating to the dismissal on 5th November 2022 was 16th March 2023. This was significant because it meant that the first claim, lodged on 15th March 2023, had, according to my findings, being initiated within the statutory time limit, even if one takes the 5th November 2022 as the relevant commencement of the limitation period. There is, of course, an argument, that the time limit for this claim commenced when the respondent last paid the claimant, which was at the end of January 2023 [55]. In which case the expiry of the time limit may fall at a later date. I therefore dismissed the application in relation to the first claim, for unlawful deduction from wages.[15]The position was of course different for the second claim, which was lodged a day out of time, on 17th March 2023. The claimant would therefore need to satisfy me firstly that it had not been reasonably practicable to lodge the claim with time. I note first of all that the claimant had, in fact, lodged a claim in time. This was a different claim with potentially different applicable time limits. Also, I find that the lodging of the first claim a day before the expiry of the time limit for the unfair dismissal claim was a matter of coincidence. There were at least four arguable EDT’s in this case. It must have been extremely confusing for the claimant, or anyone seeking to give him advice about time limits. I am satisfied that he did not have professional legal representation prior to loading his claims.[16]I am also satisfied that the waters were ‘muddied’ somewhat by the respondent in this matter. I accept the claimant’s evidence that in September 2022, so prior to his dismissal, he was told by the respondent that they couldn’t afford to keep him on as an employee, but that he might continue as a ‘consultant’, whatever that may have been intended, to mean. I accept that he had several discussions about this both, before and after his dismissal, with Mrs Dugdale, who was a senior manager for the respondent.[17]In my judgment, these discussions took place until late January/early February 2023. I have come to this conclusion for 2 reasons. The first is the the claimant’s outstanding wage issues were not resolved until the letter of 26th January 2023 [55]. There was a very long delay between the original notice of termination on 4 of 6 21st October, and this letter. I have seen no explanation from the respondent about this. In my judgment, it can be explained by a continuing possibility of a relationship between the parties.[18]Secondly, there is the fact that the claimant remained registered with CQC as the manager of the business. He was not deregistered until 8th February 2023. This is an important status for a business providing regulated activities. Failure to deal properly with registration can carry criminal sanction. I find it unlikely that he would have remained registered, or that the respondent would have allowed him to retain that status, unless there was an ongoing relationship of sorts. There has been no contrary satisfactory explanatory from the respondent.[19]Further, I accept the claimant’s evidence that he continued to deal with matters on behalf of the respondent post his dismissal, including liaising with Surrey County Council who were investigating the respondent. He was also involved in the completion of the ‘capacity tracker’ which is a weekly key performance indicator. This is found on a NHS/CQC portal. He was also taking part in the attempt to obtain new contracts from Nottingham County Council, and in relation to the care of asylum seekers entering the country via Heathrow airport.[20]I also accept that the claimant did not believe that his employment had come to an end until the CQC letter of 8th February. I have found that this was incorrect. As a matter of law, that letter clearly has limited if any significance to the contractual relationship between the parties. However, the claimant is not a contract lawyer, and should be held to those standards of knowledge. He thought he continued with some form of work for the respondent. It was reasonable in my view that he held that belief. He explained that one of the reason he did not submit the claim until he did was because he was in discussions with Mrs Dugdale as to how to grow the business. I accept this evidence. He described Mrs Dugdale as a family friend. He trusted her even though there was no formal agreement in place after October 2022.[21]The claimant went on to explain that there had been an attempt to settle matters out of court, which had come to an end in or about 15th March 2023. This caused him to lodge the first claim. The claimant admitted that he was aware of the existence of a three month time limit for bringing tribunal claims, although he was not sure from where that information had come.[22]In summary, this is a case where the claimant was confused by the conduct of the respondent. In effect, he was given an expectation of a continuing working relationship until the end of January 2023, before which it would not have been appropriate to have considered bringing a claim against his former employer until that time. Accordingly, I find that it was not reasonably practicable to have lodged the second claim until three months from that date. Further, I find that the short delay of one day is reasonable in the circumstances.[23]I therefore dismiss the application in relation to both claims. They will both be considered at a final hearing. 5 of 6 Richard Wood 11th August 202323/7/2023 . N Gotecha 6 of 6
REASONS
[1]There was some history to this case which I will not repeat here as it is set out in detail in previous case management orders.[2]The respondent made an application for strike out under rule 38(1)(b) of the Employment Tribunal Rules of Procedure 2024 on the basis that the claimant’s behaviour has been unreasonable, scandalous and vexatious. PHCM Order 1 of 7[3]As set out by the Court of Appeal in the Court of Appeal in Abegaze v Shrewsbury College of Arts & Technology [2009] EWCA Civ 96, [2010] IRLR 236 at [15]: ''In the case of a strike out application brought under [r 38(1)(b)] it is well established that before a claim can be struck out, it is necessary to establish that the conduct complained of was scandalous, unreasonable or vexatious conduct in the proceedings; that the result of that conduct was that there could not be a fair trial; and that the imposition of the strike out sanction was proportionate. If some lesser sanction is appropriate and consistent with a fair trial, then the strike out should not be employed”.[4]The respondent relied on two grounds;4.1 that the witness statements of Mr Badejo, Mr Afolabi and Ms Lawson had not been prepared by those witnesses and did not contain their evidence. They had been prepared and signed by the claimant and in respect of Mr Badejo’s witness statement used without his authorisation;4.2 the claimant had submitted to the tribunal and the respondent, as part of his evidence in this case, payslips that the claimant had manufactured and which were therefore fraudulent.[5]At the hearing I heard witness evidence from Ms Lawson who was called by the claimant. The claimant gave evidence as did Ms Dugdale. I will address Mr Badejo below. Witness statements[6]In relation to Ms Lawson’s evidence, she did not have a copy of her witness statements or documents. Her witness statement was read to her and she confirmed that that was her evidence and that she signed it. She was asked questions by the claimant, Ms Omotosho and me about whether the email witness statement and the formal witness statement both dated 24 April 2023 were her evidence and if she had signed them.[7]Her evidence was, at times, unclear and it was only after Ms Omotosho read out the statement of truth which set out the potential consequences of not giving truthful evidence that she confirmed that she had signed both statements. I recognise that the statements were prepared some time ago and memories fade. Ms Lawson did however say that she had signed both witness statements and she remembered the preparation of the witness statements. In light of this evidence, I am not prepared to find that Ms Lawson did not prepare and sign the statements in the bundle. The respondent’s position was that her signature was PHCM Order 2 of 7 clearly different on the two witness statements. I have reviewed the witness statements and I do not think that the signatures are clearly different. There was no expert evidence on the point. Therefore, I find that the claimant did not act unreasonably, scandalously or vexatiously in relation to the preparation or signature of Ms Lawson’s statements.[8]In relation to Mr Badejo’s statements. Mr Badejo did not appear as a witness until 2pm, the claimant said that he had expected him to attend. He had a call with him the night before during which Mr Badejo said that the CQC were inspecting one of his sites. The claimant said that he only found out Mr Badejo would not be attending this morning. He also and contradictorily indicated that Mr Badejo had not told him that he would not be attending. This was after I said I expected written evidence to be provided of his non-attendance and the CQC inspection. The claimant said he did not have it. Mr Badejo did not prepare a witness statement in relation to the strike out application and so he did not directly address whether he had prepared the other witness statements, had signed them, had given permission to the claimant the claimant to use them in this hearing.[9]The respondent expected him to be called and intended him to be cross examined. They were not able to do this.[10]Someone who entered Mr Badejo’s name appeared on the video link at around 2pm for a few minutes. The camera was turned on but at no time could I see an individual. I do not know who this was and am not prepared to accept that it was Mr Badejo. Nobody else dialled into the call again.[11]It is most unsatisfactory that Mr Badejo did not appear as a witness and that he did not provide any evidence about the contentious issue of the veracity of his alleged witness statements and what he had authorised the claimant to do. This created difficulties for both the respondent and claimant to establish their case.[12]Ms Dugdale’s evidence was that she had a conversation (which is recorded in the transcript in the bundle) with Mr Badejo in which he stated that he had not given permission for the claimant to use his evidence in this case, he had not approved the witness statement and he had not agreed to attend the (previously scheduled substantive) hearing. Ms Dugdale’s evidence was also that Mr Badejo’s signatures were not his signature. However, there was nothing to support Ms Dugdale evidence about the signature. She said that he was a consultant for the respondent and therefore she knew his signature. In these PHCM Order 3 of 7 circumstances, I would have expected his signature to have been provided for comparison purposes. It has not been.[13]The claimant did not dispute the transcript of the recording of the conversation between Ms Dugdale and Mr Badejo.[14]I have carefully considered whether or not the claimant has acted unreasonably, scandalously or vexaiously in this regard and particularly by failing to obtain a further witness statement from Mr Badejo to explain his position on the preparation, signature and authorisation to use his witness statement. However, taking all of the circumstances around Mr Badejo’s evidence together, I have decided that the claimant has not acted unreasonably, scandalously or vexatiously in this regard. It is not uncommon for individuals to tell two different sides to litigation different things, particularly when they have a relationship with each other. I am not satisfied that the claimant acted beyond Mr Badejo’s authority.[15]The respondent also argued that the contents of Mr Afolabi’s statement went beyond what he had set out in an email to the claimant and on this basis the claimant had acted unreasonably, scandalously or vexatiously. I have not had the benefit of evidence form Mr Afolabi and reading the two documents I am not satisfied that the claimant has gone beyond Mr Afolabi’s instructions. Payslips[16]In relation to the payslips, the claimant set out in his witness statement from 24 May 2024 the following, in relation to the green payslips (which are the payslips in issue):[17]In oral evidence, the claimant gave several different accounts about the preparation of the payslips. He said “he made the payslips to buttress his original case”. In cross-examination he was asked about his statement that his accountant had prepared them, after some questioning the claimant accepted PHCM Order 4 of 7 that he had generated the payslips himself by using an online programme. He said that this was the same as if he had used Excel to calculate the amounts. He said that there was no difference between an accountant preparing them and accounting software preparing them. He said he had submitted them with his schedule of loss and they were only intended to show how he calculated the monies owed to him.[18]The claimant’s evidence was that when he first submitted his claim (3303424/2024) on 17 March 2022, the respondent failed to submit a response and the tribunal had written to him with a Rule 21 judgement asking him for more information about “the amount claimed as unpaid wages and how you calculate that figure…”. The claimant claimed that he submitted the payslips with a schedule of loss so that the tribunal could understand how to calculate its loss. A judgement was in fact made in the claimant’s favour for over £35,000. This was reconsidered for reasons connected to the respondent not being on notice of the claim.[19]The claimant said that the payslips should not have been included in the bundle for this hearing as they had only been sent to the tribunal because of the tribunal’s request for more information. The parties confirmed that the claimant’s accompanying email to the tribunal attaching those payslips was not in the bundle. I asked the claimant to find that email. I gave him 10 minutes initially and he was unable to find that correspondence with the tribunal. We then took an extended lunch break so that he could search for them. Ms Omotosho said that she had copies of the green payslips and her colleague who was now on maternity leave must have been sent them to her and she would look for that correspondence. No party was able to find the correspondence accompanying the green payslips. The claimant asserted that he did not send the payslips to the respondent and it must have been the tribunal. I do not accept this claim by the claimant. The Tribunal does not send evidence to parties. I consider that this was the claimant trying to apportion blame away from him.[20]This application for strike out has been running in some form for over 12 months. It was discussed again in the preliminary hearing on 27 March 2025 when directions were set out for preparation of this hearing to decide the issue. From the above, it is clear that neither party had prepared their case as they should have. The parties have made a considerable number of applications and seem to continue to do so without having properly considered what they need to establish in order to succeed in these applications. They should consider focusing on the substance of this case and ensuring that the case is ready for the final hearing. PHCM Order 5 of 7[21]The green payslips do not contain the respondent’s name, they set out a national insurance number and I do not know that it is the claimant’s. They are in respect of the period of April to October 2021 and cover the period claimed by the claimant as when he suffered unlawful deduction from wages. They set out the claimant’s name, a tax code, PAYE tax deductions but no national insurance payments. Reviewing these payslips it is difficult to conclude that they were produced for any other reason than to artificially bolster the claimant’s claim and to establish that the amounts that he claimed were amounts that the respondent agreed to pay to him so that he could establish an unlawful deduction from wages claim easily and at the highest level he claimed. This is particularly so in the context in which he submitted them which is that they were produced by the claimant and submitted to the tribunal in the context of a Rule 21 Judgement and the claimant was aware that the respondent was not involved in the case so would not alert the tribunal to the fact that these payslips were manufactured.[22]I recognise that the claimant said that they were not intended to achieve this effect. However, I find that this is very difficult to maintain in the circumstances and I reject this.[23]I summary I have found the following:23.1 The claimant knowingly manufactured the green payslips by using a computer programme;23.2 He sent them to the Tribunal in response to the request for him to provide information to quantify his claim after a Rule 21 Judgment had been issued in his favour in claim 3303391/2022;23.3 At this time the claimant was on notice that the respondent had not responded to his claim or engaged with the Tribunal process;23.4 The claimant’s witness statement contains a false statement that he asked his accountant to prepare the green payslips when he in fact manufactured them himself;23.5 As a result of sending the green payslips to the Tribunal an award in the amount of £35,000 was issued in the claimant’s favour;23.6 The Rule 21 Judgment was reconsidered after an application from the respondent and decided against the claimant so that all the claims are proceeding to final hearing;[24]Overall, I have concluded that the claimant’s conduct is unreasonable and scandalous in producing these payslips and submitting them to the tribunal. I find that his conduct was intended to mislead the tribunal and obtain a financial gain for himself. PHCM Order 6 of 7[25]Following, De Keyser Ltd v Wilson 2001 IRLR 324, EAT and Bolch v Chipman 2004 IRLR 140, EAT, I must go on to consider whether as a result of this conduct a fair trial cannot take place. I find that the claimant’s credibility is irretrievably destroyed by having manufactured and relied on these green payslips to mislead the tribunal and obtain a financial gain. Therefore, I am not satisfied that a fair trial cannot take place.[26]The final stage to consider is if a strike out decision is proportionate. I have given careful consideration as to whether or not the claims can be separated and so only one claim relating to the unlawful deduction from wages is struck out. The Rule 21 order, the information requested by the Tribunal and the green payslips provided by the claimant were in respect of claim 3303391/2022 only and the conduct took place before the two claims were joined. Given that the two claims were joined some time after this conduct, I find that it would be disproportionate to strike out the claims under 3303224/2022.[27]I have decided to make a strike out order in respect of all matters under claim 3303391/2022 which related to unlawful deductions from wages and all associated claims. However, the claimant’s conduct may well have future implications on the entirety of these proceedings. These will need to be dealt with, where relevant, at the final hearing.[28]Claim 3303224/2022 will be listed for a further Public preliminary hearing to deal with any residual case management issues and the respondent’s application to amend the grounds of response. This will take place on 16 March 2026 via video/cvp. Approved by: