Employment Judge HallidayIn person for claimantMs Hoeritzauer (instructed by Solicitor) for respondentDate 17 January 2023
JUDGMENT
[1]It is the Judgment of this Tribunal that the Claimant was an employee of the Respondent. JUDGMENT having been sent to the parties on 21 November 2022 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]This is the judgment following a preliminary hearing to determine the employment status of the claimant. In this case the claimant, Mr Singh has brought claims alleging unfair dismissal, age discrimination, whistle-blowing and for other payments and benefits. The respondent’s claims are all denied by the respondent. This tribunal's jurisdiction to hear these various claims turns on the claimant’s employment status. Issues to be determined[2]The following issues therefore fall to be determined: 2.1. Was the claimant an employee of the respondent within the meaning of section 230(1) of the Employment Rights Act 1996? 2.2. Was the claimant a worker of the respondent within the meaning of section 230(3) of the Employment Rights Act 1996? 2.3. Was the claimant “in employment” within the meaning of section 83 of the Equality Act 2010? 2.4. Whether the claimant was a self-employed independent contractor
Background
[3]The respondent is a global company proving airlines with lodgings for their crews, executives, teams, and disrupted passengers by sourcing hotel rooms for their use.[4]By a claim form presented to the tribunal on 10 May 2021, the claimant who worked for the respondent latterly as a Business Development Director, brought a number of claims against the respondent including claims for unfair dismissal, age discrimination, public disclosure detriment, and for other payments and benefits.[5]I heard from the claimant, and from Ms Halliday on behalf of the respondent. Additional witness statements were presented by the claimant in support of his contention that he was an employee but as the witnesses did not attend the hearing, I give them limited weight. Likewise, Ms Halliday was not able to give first hand evidence about what happened prior to her joining the parent company of the respondent on or around February/March 2020 and this evidence was therefore less persuasive than the claimant’s first-hand account. I was also referred to a number of documents in a bundle of 229 pages.[6]There was a degree of conflict on the evidence, and I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.[7]By email dated 23 March 2015 Ted Scislowski made an offer to the claimant to “join/partner with our organisation”. It was stated to be an initial offer and to be subject to a contract and further details. Reference was made in the letter to a pension plan, amongst other matters.[8]The claimant indicated his willingness to accept the offer the same day. He referred to his belief that the respondent could offer him a long term career in an organisation which cares for its employees for the long term.[9]The claimant flew to the States to meet his US colleagues and for an induction and whilst he was in a restaurant, on 8 April 2015, he was asked to sign a faxed copy of a contract, which was also signed for and on behalf of the respondent. The contract explicitly stated that it extended an offer of employment based on a salary of £72,000 per year. The contract also included a confidentiality provision expressly stated as being “in consideration of [his] employment”. Reference is also made to being a “Full-time employee” and to the respondent being an “at will employer”. It should be noted that the concept of at will employment does not apply in the UK.[10]I find that at the point the offer was made, it was an offer of employment and it was this offer of employment that was accepted by the claimant.[11]The claimant started employment as Business Development manager on 24 April 2015.[12]The copy of the contract in the bundle has hand-written amendments on it which are not initialled by the claimant. I accept his evidence that it was amended after he signed it and that the claimant was not aware of these changes until he received a copy of the contract after his arrangement with the respondent had been terminated. I further accept that the claimant at no point expressly agreed that he would provide services to the respondent as a consultant instead of being employed by the respondent.[13]The hand-written amendments record that the claimant would be paid as a consultant and that pension would be added by 1 June 2015. I accept the claimant’s evidence that the expressed intention at that time was to set up an appropriate payroll via an Irish subsidiary and that when this initially did not happen and he had not been paid two or three times that an arrangement was set up whereby he was, as stated in the amended contract, “paid as a consultant”. This was done by the claimant completing a template document provided to him by Tyler Stewart, then Vice President with the respondent, which was headed “invoice”. I was provided with no further documentary evidence and limited oral evidence about any further discussions between the parties in relation to any changes to the contractual arrangements or a further agreement between the parties other than the evidence provided by the claimant in relation to process changes relation to payment of his invoices. I accept that this payment process continued substantially unaltered until the arrangements were terminated. I conclude that there was no express contractual variation between the parties that purported to change the relationship between them from one of employment to one of self-employment.[14]Whilst engaged by the respondent, the claimant: worked full-time and was available during normal office hours and out of hours when required; he reported to a line manager and had employees reporting to him; he was provided with office facilities and necessary equipment including a laptop; he had company business cards and was paid sick pay and holiday pay; and his grievances were dealt with under the company grievance policy. Ms Halliday confirmed in her evidence that to her knowledge, other than in relation to payment terms, the claimant was treated in all ways in the same way as an employee.[15]Having established the above facts, I now apply the law.[16]In recent years there have been a number of court decisions on the question of status. For the purposes of this hearing, it is important to consider that there are essentially three different types of status for someone engaged in the work place. That is: employee, worker or self employed contractor.[17]Employees and workers are defined in section 230 of the Employment Rights Act 1996 ("the Act"). An employee is an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.[18]A contract of employment is defined as a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.[19]Under section 230(3) of the Act a worker means an individual who has entered into or works under (or, where the employment has ceased, worked under) -(a) a contract of employment, or(b) any other contract, [……] whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual. (A worker who satisfies this test in sub-paragraph (b) is sometimes referred to as a “limb (b) worker”).[20]For the purposes of a discrimination claim, employment means an individual who is employed under a contract of employment … or a contract to provide services personally.[21]The right not to be unfairly dismissed is limited to employees.[22]Recent Authorities such as Autoclenz Limited v Belcher and Ors [2011] ICR1157, and more recently Uber BV and Ors v Aslam and Ors [2021] ICR657, tell us that it is for a Tribunal to determine the true agreement between the parties and this will often have to be decided by the Tribunal by looking at all of the circumstances of the case of which any written agreement is only a part. The Tribunal’s task is to determine whether the statutory definition of “worker” and “employee” is met. The rights are created by legislation. The task is one of statutory interpretation not contractual interpretation. It is therefore for the Tribunal to assess the true position between the parties. Employee Status[23]With respect to employee status, the leading case remains Readymix Concrete (South East) Limited v Minister of Pensions and National Insurance [1968] 2 QB 497. That specifies that there must be firstly, personal service and secondly, a sufficient degree of control to make a servant and master arrangement exist. There must be wage or other remuneration.[24]There must also be an irreducible minimum of obligation on each side to create a contract of service. The employer must be obliged to provide work and the employee to accept what is provided.[25]The task of the Tribunal is to examine all the factors both consistent and inconsistent with an employment relationship. Worker Status[26]In terms of a worker, a Claimant is a worker where they are engaged under a contract and they perform the work personally and the Respondent is not a client or customer of the Claimant’s business.[27]I have also considered the case of White and Anor v Troutbeck SA [2013] IRLR 949 CA – which is authority for the proposition that lack of day to day control does not defeat employment status where there is overall actual control.[28]I have also been referred to the well known case of Pimlico Plumbers by Ms Kaur speaking on behalf of the claimant and the Nursing & Midwifery Council v Somerville by the respondent’s representative.[29]I take all these cases as guidance and not in substitution for the law.[30]Looking further at the Autoclenz decision, the Supreme Court has upheld the Court of Appeal, and the approach to be adopted where there is a dispute (as in this case) as to an individual's status. In short, the four questions to be asked are: first, what are the terms of the contract between the individual and the other party? Secondly, is the individual contractually obliged to carry out work or perform services himself (that is to say personally)? Thirdly, if the individual is required to carry out work or perform services himself, is this work done for the other party in the capacity of client or customer? And fourthly if the individual is required to carry out work or perform services himself, and does not do so for the other party in the capacity of client or customer, is the claimant a “limb (b) worker” or an employee?[31]I adopt and apply this test in that order.[32]First, as to the terms of the contract, I have already summarised the findings of fact which support the claimant’s engagement as an employee and have noted that the terms of the signed contract expressly refer to employment. The one factor relied on by the respondent as evidence the claimant was not an employee is the hand-written statement that the claimant will be paid as a consultant. However, I have firstly concluded that the claimant was not aware of the contract changes, although it is of course clear that he was aware and had impliedly agreed to being paid on a gross basis via submission of a template invoice. Secondly, I conclude that in any event the only aspect of the contract which was changed was in relation to the method of payment. The other express provisions which referred to employment in the contract, were not, even on the respondent’s case changed and they have submitted no evidence in support of their contention that there was in fact an agreed change to the claimant’s status.[33]As to the second limb of the Autoclenz test, there is no question even on the Respondent’s own evidence, that the Claimant was engaged to perform work personally. I find that the claimant was contractually obliged to carry out services personally, there was no right to send a substitute and there was therefore the "irreducible minimum" required for employment status.[34]As to the third and fourth limbs of the Autoclenz test, I find that the claimant did not carry out services personally for the respondent in the capacity of client or customer. Turning finally to the "limb (b) worker" definition I have considered carefully whether under section 230 the claimant meets the wider definition of "worker" only or satisfies the test of employment and I conclude that he satisfies the test as an employee. I rely on my findings that he reported to a line manager, was required to be available during normal office hours and out of hours when required; and conclude that whilst as a senior employee he had some flexibility in performing his duties and was not micro-managed he was under the control of the respondent. I also conclude that he was integrated into the respondent’s organisation having employees reporting into him. I have further noted Ms Halliday’s evidence that other than in relation to payment terms, the claimant was treated in all ways in the same way as an employee. I have presented with no evidence that the claimant was in any way in business on his own account.[35]I have also considered if the situation changed over time and having concluded that the contract was not expressly varied and the working arrangements essentially remined consistent throughout the claimant’s engagement at least in relation to the relevant factors outlined above, I conclude that the claimant’s status did not change at any point during his engagement by the respondent.[36]I lastly consider whether the one factor relied on by the respondent as evidence of a self-employed relationship, that the claimant was paid gross against invoices, outweighs all the other factors which support the claimant’s employment status and conclude that it does not.[37]It is not uncommon for parties to adopt the most convenient approach to the taxable status of an individual engaged by an organisation and for this to be challenged at a later point and this is evident in many of the cases in which employment/worker/self-employed status has been challenged over recent years. However, tax status is not of itself determinative of employment status. It was no doubt expedient for the respondent to pay the claimant in this way and potentially the origins of the arrangement became forgotten over time with changes in personnel. Equally, the claimant who has been receiving gross and not net pay, instead of contractual benefits, throughout his employment may have seen little value in pro-actively challenging the status quo up until the point that the arrangement was terminated. However, this one factor does not affect the findings made above.[38]In conclusion therefore I find that the claimant was an employee of the respondent within the meaning of section 230(1) of the Employment Rights Act 1996 and “in employment” within the meaning of section 83 of the Equality Act 2010 at all material times.
REMEDY
[40]The claimant did not receive any letter confirming his termination. In January 2021 he was paid a gross sum of £24900. We have an email from an HR Director of Fleetcor which has manuscript on it as follows: “10 weeks – 50 days @300 = 1500 Holiday – 33 days @ 300 = 9900 Total to be paid 24900 GBP”[41]On 5 January 2021 the claimant queried what the payment for “five weeks and three days was for”. He was told on 7 January it was one week per year of service plus three days holiday. Neither the question nor answer seem to bear any relation to the sum paid or the manuscript indication.[42]On 23 January 2021 the claimant set out in an email a detailed grievance complaining of unfair dismissal, unlawful deductions from wages, bullying and harassment. He made no mention of any alleged protected disclosures. As to commission he said that the Virgin contract would generate £10million per annum giving the claimant an entitlement of £250,000 commission over five years, and listed many other airlines which he had brought in. The claimant said that he would (at that stage) accept £100,000. Whilst there was a response to the claimant’s grievance we have not seen any evidence that the commission point was addressed by the respondent.[43]As set out below, dismissal was not because of any protected disclosures in 2015/ 2016/ 2019. There is no evidence to suggest a causative link, and a considerable period of time elapsed between the alleged disclosures and the dismissal. By the time of the dismissal Tyler Stewart had left the organization, and the decision maker in relation to the dismissal was, according to Ms Halliday, Ginger Baker. There is no evidence she knew of any alleged disclosures.[44]Claimant was aged 46 when he was dismissed. He compares himself to Mr Clayton who was retained; he was aged 42 and Viktoriya Soubra who was aged 39. The claimant says that Ingrid Young and Florance Baudoin who were age 65 and 55 respectively and were dismissed, as was he. We are not satisfied that the claimant has shown any link between his age and the decision to dismiss him. In any event, we would not have accepted that the comparators were in materially the same circumstances; the claimant says some were more experienced, some less. Law. Unlawful deductions from wages.[45]Section 13 of the Employment Rights Act 1996 (“ERA”) provides: (1) An 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. (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.[46]Section 23 provides: 23 Complaints to employment tribunals(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 section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)), ...(2) Subject to subsection (4), an employment tribunal 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. [(3A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2).](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. [(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.[47]We must consider therefore what sums were properly payable to the claimant, on what dates. We must also consider whether the claim was presented to the claimant within three months (extended by operation of the ACAS EC period) of the deduction – or if a series of deductions, from the last of them. There is no statutory definition of a 'series of deductions' for the purposes of ERA 1996 s 23(3). However, the term has been considered by the EAT in the joined cases of Bear Scotland Ltd v Fulton; Hertel (UK) Ltd v Woods; Amec Group Ltd v Law [2015] IRLR 15 where Langstaff P stated: ''Whether there has been a series of deductions or not is a question of fact: “series” is an ordinary word, which has no particular legal meaning. As such in my view it involves two principal matters in the present context, which is that of a series through time. These are first a sufficient similarity of subject-matter, such that each event is factually linked with the next in the same way as it is linked with its predecessor; and second, since such events might either be stand-alone events of the same general type, or linked together in a series, a sufficient frequency of repetition. This requires both a sufficient factual, and a sufficient temporal, link.''[48]In Group 4 Nightspeed Ltd v Gilbert [1997] IRLR 398 a claimant who complained that he had been underpaid commission in respect of four different clients was found to have suffered a series of deductions (even though the reasons for non-payment differed).[49]If there has been a series of deductions, the period of two years prior to the presentation of the ET1 can be taken into account (but not longer): s 23(4A).[50]Section 27 provides for the meaning of “wages” in this part of the ERA “(1) In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including—(a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise, … but excluding any payments within subsection (2). (2) Those payments are— (a) any payment by way of an advance under an agreement for a loan or by way of an advance of wages (but without prejudice to the application of section 13 to any deduction made from the worker's wages in respect of any such advance),(b) any payment in respect of expenses incurred by the worker in carrying out his employment,(c) any payment by way of a pension, allowance or gratuity in connection with the worker's retirement or as compensation for loss of office,(d) any payment referable to the worker's redundancy ….[51]While therefore a failure to pay commission can amount to a deduction from wages; Delaney v Staples [1991] IRLR 112, CA (considered on other grounds by the House of Lords [1992] IRLR 191,) failure to make pension contributions cannot (Somerset County Council v Chambers UKEAT/0417/12 (25 April 2013, unreported); University of Sunderland v Drossou [2017] IRLR 1087. Breach of Contract[52]The Employment Tribunal (Extension of Jurisdiction) England and Wales Order 1994 provides that proceedings may be brought before an Employment Tribunal in respect of a claim of an employee for the recovery of damages if the claim arises or is outstanding on the termination of the employee’s employment. Unfair dismissal.[53]Section 98 ERA 1996 requires an employer to show a potentially fair reason for dismissal – which includes redundancy and SOSR. If the employer shows a potentially fair reason, the ET must then consider whether the employer acted reasonably, in all the circumstances, in treating that as a sufficient reason for dismissal. Redundancy is defined in section 139 ERA. Protected disclosure.[54]Section 43B ERA 1996 provides that a qualifying disclosure is a disclosure of information which, in the reasonable belief of the worker making it, is in the public interest and tends to show … (b) that a person has failed, is failing or is likely to fail with any legal obligation to which he is subject.[55]The approach to be taken to what is in the public interest was set out in the case of Chesterton Global Ltd v Normohamed [2017] IRLR 837.[56]Section 47B ERA provides that workers must not be subjected to detriments on the ground they have made a protected disclosure.[57]The time limit for presenting a complaint to the tribunal of a detriment is three months (extended by ACAS EC) from the date of the act complained of, or within such further period as is reasonable if it was not reasonably practicable to have presented it within that period; section 48 (3) ERA.[58]Section 103A ERA provides that dismissal for making a protected disclosure will be an automatically unfair dismissal. Direct Discrimination.[59]Section 13 of the Equality Act 2010 (EqA) provides that a person must not be treated “less favourably” than another person in comparable circumstances because of their protected characteristic; the claimant here relies on his age.[60]Section 123 EqA provides for the time limits in discrimination claims, and any complaint must be presented within three months of the act complained of (extended by the ACAS EC provisions) unless it was not reasonably practicable to have done so, providing it was presented within such further period as was reasonable. Submissions.[61]Mr Mukulu provided us with submissions consisting of 5 paragraphs over 1.5 pages. They did not address the law or the issues. He also made oral submissions. He made the following express concessions:a. The claimant did suffer unauthorised deductions from his wages of 4 days per week in March, April, May, June, July, August and December 2020.b. The claimant did suffer unauthorised deductions from his wages of 3.5 days in September, October and November 2020.c. The claimant was not paid accrued commissions due to him at the termination of his employment and sums were outstanding.[62]In relation to the “car allowance” Mr Mukulu, having been asked on days one and two of the hearing what his legal points were on the issue, referred to a car allowance rate of £600. When asked by the tribunal expressly if he was therefore not alleging the breach of contract – for provision of a car (NOT for provision of an allowance to which there was no contractual entitlement) had been affirmed, he sought to adopt the argument. He said that although this had not been pleaded, identified in the list of issues or put by him during cross examination it was a matter of law for the ET to consider.[63]As to pension Mr Mukulu said 3% was the rate provided for in auto enrolment schemes, which were what is required by state legislation. When the tribunal pointed out that pension contributions cannot constitute wages under s27 ERA, he contended that as it was not a breach of contract issue the claimant would need to amend his claim. In answer to questions he accepted that the Respondent would suffer no prejudice from such an amendment.[64]As to commission sums owed, Mr Mukulu relied on the witness statement of Ms Halliday which identified, from the claimant’s schedule of airlines he achieved contracts, of a total of $26,869 over the three year period of 2018 – 2021 (i.e. including sums received after the claimant’s EDT).[65]The respondent agreed the claimant was dismissed, but said it was by reason of redundancy. He accepted no procedure was followed and said the reason for that was that the claimant was a contractor. He said neither age nor protected disclosures could be shown to be causative. He (eventually after questions) submitted that any detriments alleged from the protected disclosures were out of time.[66]Ms Kaur provided written submission which we took time to read, and addressed all the issues before us. In relation to commission she said that “the respondent’s continued failure to take instructions / provide a former employee with simple documents in a digital word is shocking and disturbing. That it cannot generate reports / find records/ find the employee record, is shocking. Whole case has been ill prepared by them”. CONCLUSIONS ON THE ISSUES. Unfair dismissal.[67]The respondent has failed to show a potentially fair reason for dismissal. It asserted redundancy / SOSR. It has not evidenced a redundancy situation. The decision maker was not called to give evidence and there was not even a letter of dismissal.[68]The claim for unfair dismissal accordingly succeeds.[69]Even had the respondent shown a potentially fair reason, it did not act reasonably in treating it as sufficient reason to dismiss the claimant. It followed no process whatsoever. The claimant was told to attend a zoom call on 22 December 2020 and dismissed summarily, being told it was “because he a contractor”. We note that others carrying out business development roles were retained; whilst no “Polkey” argument was identified or raised, we would in any event have dismissed it as the respondent did not even attempt to seek to show that a fair procedure would have made no difference. Protected Disclosures.[70]Whilst the claimant’s evidence lacked any specificity, on balance we accepted that he disclosed ‘information’ to Mr Stewart and Ms Hasegawa, noting in particular that he was not challenged in cross examination that he had done so. Whilst the claimant might have had a reasonable belief that this was in the public interest in 2015 or even early 2016, we are not satisfied he had such a belief in 2019. As set out in the facts, by this time he had been receiving gross payments for four years, without accounting for tax or paying any national insurance whatsoever, and is seeking payment of commission based on what he says is double charging by the Respondents. Nor are we satisfied that the claimant had a reasonable belief that unethical practices amounted to a criminal offence, or a breach of a legal obligation. We have seen no evidence that the claimant escalated the matter if he thought it was a breach of legal obligations, rather than simply ‘sharp practice’.[71]In any event, even if the claimant had made protected disclosures to Tyler Stewart, we are not satisfied that this led to his being bullied by Ms Harding. Furthermore the claimant says this took place between 2015 and 2018; the claim was presented in May 2021 and the matter is out of time. The claimant has not demonstrated that it was not reasonably practicable to have presented a claim within the statutory time period.[72]Similarly in relation to his position of Country Manager, the claimant says this was 2017; we are not able to find this was because of any protected disclosure, but in any event it is out of time.[73]His dismissal was not because of any protected disclosures in 2015/ 2016/ 2019. There is no evidence to suggest a causative link, and a considerable period of time elapsed between the alleged disclosures and the dismissal. By the time of the dismissal Tyler Stewart had left the organization, and the decision maker in relation to the dismissal was, according to Ms Halliday, Ginger Baker. There is no evidence she knew of any alleged disclosures. Age Discrimination.[74]Claimant was aged 46 when he was dismissed. He compares himself to Mr Clayton who was retained; he was aged 42, and Viktoriya Soubra who was aged 39 and was retained. The claimant says that Ingrid Young and Florance Baudoin were age 65 and 55 respectively and were dismissed, as was he. We are not satisfied that the claimant has shown any link between his age and the decision to dismiss him. Nor has he shown facts from which we could draw inferences of any such link so as to reverse the burden of proof. In any event, we would not have accepted that the comparators were in materially the same circumstances; the claimant says some were more experienced, some less. Unauthorised deductions from Wages.[75]The Respondent concedes the unlawful deductions from March to November 2020, which we are satisfied constituted a series of unlawful deductions, when they reduced his pay from to 1 then 1.5 days per week during covid, not putting any written agreement in place.[76]This amounts to a total deduction of £46,200 gross (for which account must be made to HMRC).[77]Car allowance – the contractual term was for “the provision of a lease car” during his engagement; this falls to be considered as a breach of contract claim. It is dismissed as a claim for unauthorised deduction from wages.[78]Pension contribution – pension contributions are not pay within section 27 ERA, and this claim is also dismissed as a claim for unauthorised deductions.[79]Commission. It was agreed that the claimant is entitled to 5% of commission collected on accounts he brought in. As set out above the contract is silent as to when commission is paid and both parties said that a term must be implied by business efficacy in this regard, and for the reasons set out above, we have implied a term that the commission was properly payable quarterly in arrears.[80]The claimant appears not to have collated or stored lists of what accounts he had brought in until he was asked to do so by Yoko Hasegawa at the end of 2020; this is the list he added to and presented in the remedies bundle before us at pages 6 – 9. Mr Mukulu conceded that the Claimant had been entitled to a payment on termination of his employment of accrued commission but does not agree the accuracy of the claimant’s document – we return to this issue when dealing with remedy.[81]Over the two years prior to the submission of the ET1 (i.e. May 2019 – May 2021) the claimant suffered a series of deductions from wages when he was not paid his accrued commission each quarter. He ought to have received such payments between May 2019 and his effective date of termination on 22 December 2020. He received partial payment of £7358.04 in January 2020 from contracts with Oman, ASL and TAAG Angola. Breach of Contract.[82]Claimant was entitled to a lease car and was entitled to a pension (in accordance with national duties – not at the rate of 16% which whilst discussed prior to the contract being entered into, was not reflected on the face of the document signed by the claimant in circumstances where it contains an “entire agreement clause”). Those contractual entitlements were breached by the Respondent.[83]If the claimant needed permission to amend his claim to claim pension as breach of contract in the alternative to an unlawful deduction from wages, we grant it. It is a labelling matter which causes no prejudice to the Respondent (as conceded by Mr Mukulu).[84]However, the Claimant continued to work for five years; we have no evidence that he did so under protest, for example by putting on the bottom of his invoices there was an outstanding entitlement to pension or car allowance in lieu of provision. He directed us to no emails nor told us of any phone calls or other verbal exchanges of his complaints. We find he has affirmed the breach of contract in this regard. We considered carefully the Respondent’s failure to ensure affirmation was in the list of issues or put to him in cross examination. We did not find that these failures of the Respondents should however essentially override what we find the position to have been. The claimant did not make complaints about the lack of provisions of his benefits – when we asked him to identify the raising of the issue he took us to correspondence prior to employment commencing and after its termination.[85]The claimant asserts that he should receive compensation for lack of heath and travel insurance. We do not find any entitlement to such benefits on the face of the contract and dismiss these claims. Similarly, the claimant claims 20% “team bonus” – which also does not appear on the unamended face of the contract (and nor is it within the list of issues). REMEDY Approach to calculating commission.[86]The tribunal gave oral judgment in accordance with our findings and conclusions set out above at the end of the third day of hearing. We informed the parties, that unless better evidence was presented to us on the morning of the fourth day as to what sums had been properly payable by way of commission for the period between May 2019 and December 2020 (20 months), we would adopt the following approach. We would use the table produced by the claimant on pages 6 – 9 of the remedy bundle as our starting point, remove the “Virgin” line indicating a spend by them of £50,000 000 over five years, and the line of “all others LHR” which also had a value of £50m over five years as we had no evidence in relation to either of those by way of contracts. We would then divide the turnover by 5 to calculate an annual turnover from the claimant’s contracts; take the Respondent’s 10%, then calculate the claimant’s entitlement of 5% of that, deducting the £7358 he had been paid.[87]On the morning of the fourth day:a. Ms Kaur presented to the ET a supplementary written submission, a copy of the Virgin contract as held by the claimant, the claimant’s payslips from his new employment, and a schedule setting out what bonuses the claimant had received and when.b. Mr Mukulu emailed to the Claimant 86 documents at 0821hrs. He did not have hard copies and the ET did not see these. He handed up two documents. Firstly an annotated version of the Claimant’s schedule from pages 6-9 which purported to set out how much commission had been received by the respondent on the contracts identified by the Claimant from May 2019 – December 2020. No totals were printed on the spreadsheets and both GBP and Euro were identified in the currency column, but Mr Mukulu said it indicated a total of US$1,204,224 received, which would give an entitlement to commission of $60,211. While Mukulu explained that was the same exercise that had resulted in Ms Hallidays’ witness evidence saying that for a three year period the entitlement was $26,869, he was unable to explain the differences. The second document was said to relate to disrupt passengers and showed commission earned by the Respondent of €4,505. There was no explanation as to how this related to the same airlines listed on the earlier schedule.c. Mr Mukulu asked for time to take further instructions. In fact we did not commence the remedy hearing until 12.05pm. Mr Mukulu started cross examination then asked for a further break at 12.40pm which we acceded to and the parties returned again at 12.55pm.d. The tribunal asked Mr Mukulu whether he had any other applications to make on the morning of the fourth day; we were struck that he did not make any application to adjourn the calculation of remedy, or indicate that better evidence would be available with more time afforded to him. Findings of fact in relation to remedy.[88]The parties agree that the claimant suffered unauthorised deductions from wages between March and December 2020 in the gross sum of £46,200.[89]When the claimant was summarily dismissed on 22 December 2020, he was very shocked and distressed. He quickly began to apply for other jobs in the same industry, both at a higher and lower salary. He was successful in being offered two roles; one was at a higher salary of £105,000 but had a start date which was delayed. He therefore accepted an offer of employment with Hotel Reservations Service Ltd on a base salary of £72,000 plus benefits, and started on 1 May 2021.[90]Mr Mukulu cross examined putting the case that taking four months to find a comparable role amounted to a failure to properly mitigate his loss. We do not accept that, and are entirely satisfied that the claimant acted properly to mitigate his losses by finding another role in four months.[91]We do not understand the claimant to have received state benefits during his four months of unemployment. The claimant has not advanced any claim for ongoing loss, despite telling us that his commission in his new role is less generous than his entitlement with the Respondent.[92]The claimant suffered four months loss of salary and commission because of the unfair dismissal.[93]We have taken 4 months net pay at £3785 pcm (rate taken from page 200 as new employment is on same annual rate) giving a sum of £15,140.[94]We find that the claimant should also be entitled to commission for that four month period, and have taken the monthly rate set out below in the sum of £9,038.57. = £36,154.27.[95]In addition we award loss of statutory rights in the sum of £500.[96]We are entirely satisfied that a 25% uplift on this compensation is appropriate for the Respondent’s failure to follow ACAS code of practice. No procedure whatsoever was used and the claimant was callously summarily dismissed via a zoom call after five years of service. Whether he was understood to be a contractor or an employer, this was a grossly inappropriate way to terminate that relationship.[97]As to the Respondent’s failure to provide written particulars of employment, after the EDT but prior to the presentation of the ET1 the respondent provided a contract which had been given to the claimant. It did not however comply with s1 ERA; Mr Mukulu submitted that in these circumstances we were obliged to make an order for compensation under s38 EA 2002. We accordingly award two weeks at the rate applicable for the period of April 2020 to April 2021 that amounts to £1076.[98]Turning finally to the most difficult of the issues, that of commission, we were not satisfied that the Respondent provided us with any cogent evidence to take a different approach to that we outlined at the conclusion of our liability judgment. The claimant had listed his contracts and set out the anticipated usage under each of them. In relation to crew he said that usage was generally around 98% of what was anticipated so we based our calculations on the figures as presented.[99]We had intended to disregard the Virgin contract because there was no evidence from either party about that. However, the Claimant produced the contract he secured, dated January 2016 for a five year period. This contract did not set out how many hotel rooms were anticipated.[100]We asked the Respondent to identify for us how much it had billed Virgin between May 2019 and December 2020. At 2pm on the fourth day Mr Mukulu handed us two schedules; these were “voucher activity summaries” and did not confirm that Virgin had paid all the sums set out therein. Nor did the respondent provide evidence to us that these were ‘bad debts’ and had not been paid.[101]The first schedule was for USA business indicating that the Respondent had billed Virgin US$242,975.[102]The second schedule for Virgin showed a total spend in UK, Antigua, South Africa, Jamaica, India, USA, Barbados, Nigeria, Saint Kitts and Saint Lucia of US $1,119,555. The claimant pointed out that the sub total figures for each venue – which he said was not the complete list of venues covered by the contract he had negotiated – did not give that total. Mr Mukulu was unable to explain this; so the tribunal calculated the actual total numbers from the sub totals for each country (which seemed to amount to just under US$5m) and worked out what the claimant’s commission should be. As we started to deliver oral judgement at 3.50pm on the final day of the hearing Mr Mukulu said that the second schedule had subtotals in local currencies, the implication was that the total figure of US$1.1m was in fact correct. This caused the tribunal to have to reserve its judgment to recalculate commission due.[103]The claimant considered the Virgin data to be incomplete, but he had not sought specific information from the respondent by way of order in advance of this hearing. We had no data to find that there had been utilisation of rooms at other venues and the claimant should receive the commission; we note that he appears not to have received any commission from Virgin at any point in his employment and so were surprised that he had not sought figures from the respondent whilst still employed to claim such an entitlement.[104]The claimant urged us to award £50,000 p.a. commission for all other ‘disrupt’ business via London Heathrow as set out in his schedule. We quite simply had no evidence to support this claim. Whilst we had every sympathy that the disclosure of the respondents had been inadequate, and what they had given was contradictory and confusing, there had been no requests by him for specific disclosure so as to evidence the claim.[105]Mr Mukulu in submission said it was for the claimant to prove what was properly payable. The respondent is part of Fleetcor, a multinational organisation employing over 10,000 people with a dedicated HR function. It instructed solicitors and counsel of 20 years call. Mr Mukulu’s submission was effectively that such a respondent could accept commission was due, but sit on its hands and not disclose documents enabling its calculation and thereby escape liability. We do not consider that to be in accordance with the overriding objectives of the ET. When this point was put to Mr Mukulu he did not have any answer to it.[106]We have therefore accepted the claimant’s evidence that on his ‘crew’ contracts there was 98% occupancy, such that the sums he anticipated earning commission on when he entered into the contracts could properly be relied upon. As to the disrupt business, save for Virgin – where we adopt the figures given by the Respondent, and which we now understand to indicate their receipts in schedule two were accurately said to be $1.1m, we have not found the catchall category of “all” to be proven as properly payable. We accept the claimant’s estimates for the other providers with whom he negotiated contracts. The biggest of these in relation to “disrupt” business seemed to be Norwegian; among the documents provided to the claimant but not the ET on the morning of the fourth day of the hearing, we were told that one indicated commission collected worldwide from this airline by the Respondent of $2.1million (the claimant accepted not all worldwide destinations were ‘his’). This figure seemed in keeping with those provided to us by the claimant.[107]Therefore – using the claimant’s figures from pages 6 – 9, discounting Virgin and “all”; dividing by 5 for one year = Travelliance 10 % = £10,952,677 Claimant’s 5% = £547,633 Per annum = £109,526 Per month: £9,127 X 20 months = £182,543 LESS £7358 = £175,185.[108]In addition to this, for Virgin the respondent would have billed them $1,362,530, generating commission for Travelliance of $136,253. For the Claimant this generates an entitlement (5%) of $6812.65. Using an exchange rate of $1 = £0.82, this is £5586.38.[109]We add this to the £175,185, giving a total commission payment of £180,771.38.[110]SUMMARY OF SUMS DUE:a. Wages March – December : £46,200 grossb. Commission - £180,771.38c. Unfair dismissal i. Loss of salary £15,140 ii. Loss of commission £36,154.28 iii. Loss of statutory rights £500 iv. £51,794.28 v. 25% uplift £12,948.56 vi. TOTAL: £64,742.85d. Failure to provide written particulars; £1076. TOTAL AWARD: £292,790.23
REMEDY
[1]There is no reasonable prospect of the original decision being varied or revoked.[2]Four basis are put forward to seek a reconsideration, namely:a. Failure of the respondent to enter into negotiationsb. Failure to provide cogent evidencec. The respondent’s litigation misconduct – and in particular late and inadequate disclosured. Unreasonable conduct throughout and since the judgment; the claimant notes that he has been paid a sum of £171,108.65 but with no explanation for deductions made.[3]The letter of 24 March 2023, refusing to make a preparation time order stated as follows: “Whilst there were shortcomings in the preparation of the case on the part of the Respondent, the tribunal is not satisfied that the threshold set out in Rule 76 has been crossed. As recorded in the judgment, despite being assisted by an HR professional, there were no applications for specific disclosure from the Respondent, and the ET made clear the approach it would (and then did) take in relation to calculating commission in light of the dearth of documentation. There is no indication that without prejudice communications were "without prejudice save as to costs", and no further details have been given of what offers were made prior to this hearing. Of course, in any case costs do not simply follow the event in tribunals, including where offers to settle before a hearing are beaten in the final result. Even had the threshold been crossed, the tribunal would have declined to exercise its discretion to award costs in circumstances where some claims were dismissed, and the value of the award was a fraction of what the claimant had claimed.” 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 3306616/2021[4]All the matters raised in the reconsideration application have already been considered and determined, save for the complaint about the conduct of the Respondent since the promulgation of the ET judgment. The ET considers that it no jurisdiction to make an award of preparation time for a period post dating the judgment. While there is considerable sympathy to the claimant’s requests for clarification of any deductions made from the sum awarded, again questions relating to payment of ET judgments, i.e., enforcement, are not within the jurisdiction of the ET.