Mr A Mothahir v Beta UK Ltd T/a Malik's Tandoori Restaurant: 3307933/2023

EMPLOYMENT TRIBUNALS

Case No 3307933/2023

Between

Mr A MothahirClaimant

Beta UK Limited t/a Malik's Tandoori RestaurantRespondent

Date 1 November 2024

JUDGMENT

Employment Tribunals Rules of Procedure 2013 – Rule 21 The claim succeeds and the remedy to which the claimant is entitled will be determined at a Remedy Hearing. RESERVED JUDGMENT The Judgment of the Tribunal is as follows: Wages

[1]The complaint of unauthorised deductions from wages is dismissed. I find that the claimant has not suffered unlawful deductions from wages. Notice Pay

[2]The complaint of breach of contract in relation to notice pay is dismissed. Holiday Pay

[3]The complaint that between 22 March 2023 and the respondent refused to permit the claimant to exercise the right to paid annual leave under the Working Time Regulations 1998 is well-founded.

[4]The respondent shall pay the claimant £400.0. This is the compensation the Tribunal considers just and equitable in all the circumstances under regulation 30(4). Unfair Dismissal

[5]The complaint of unfair dismissal is dismissed. The claimant was not unfairly dismissed. Failure to provide a written statement of employment particulars

[6]When the proceedings were begun the respondent was in breach of its duty to provide the claimant with a written statement of employment particulars. There are no exceptional circumstances that make an award of an amount equal to two weeks’ gross pay unjust or inequitable. It is just and equitable to make an award of an amount equal to 2 weeks’ gross pay. In accordance with section 38 Employment Act 2002 the respondent shall therefore pay the claimant £993.08. Respondent’s Counter Contractual Claim

[7]The respondent’s contractual claim is dismissed. Written Reasons The hearing

[8]The hearing commenced on 17 October 2024 as set out below the Claimant attended without having prepared the case in advance or exchanged any documents with the respondent. He had not responded in relation to preparation of the bundle nor prepared a witness statement.

[9]The hearing did proceed on the second day. I heard witness evidence from the claimant, Mr Jahangir Ali, Mr Kirgir Ahmed and Mr Malik. Standard and Burden of Proof

[10]In relation to the automatic unfair dismissal claim, as the claimant has less than two years’ service the burden of proof is on the claimant to show that the two-year qualifying period does not apply and therefore the burden is on the claimant to show that the sole or principal reason for the dismissal was one subject to automatic unfairness see Smith v Hayle Town Council

[1978] IRLR 413

[1978] ICR 996

. The Court of Appeal in Kuzel v Roche Products Limited

[2008] EWCA Civ 380

[2008] IRLR 530

set out the proper approach is:a. Has the Claimant shown that there is a real issue as to whether the reason put forward by the Respondent was not the true reason?

b. If so, has the employer proved his reason for dismissal?

c. If not, has the employer disproved the automatically unfair reason advanced by the Claimant?

d. If not, dismissal is for the automatically unfair reason. The respondent’s application for strike out

[11]It is not disputed that the claimant did not comply with the case management orders of 31 May 2024. That document set out standard case management orders about preparation of a bundle, and exchange of witness statements. The claimant did not provide any documents in disclosure or for a bundle and did not provide a witness statement.

[12]This resulted in the entire first day of the hearing being wasted as it was unclear what the claimant’s case was on a number of the issues. I gave the claimant substantial time on the first day of the hearing to prepare a witness statement which he did with the kind assistance of the court interpreter. The interpreter was careful to remind the parties that he was independent but he considered that without his help the claimant would not be able to prepare any documents on the day which would create difficulties.

[13]The claimant had prepared a schedule of loss which he emailed to the tribunal but did not copy to the respondent. This was sent on 27 August 2024. When I went through this document with the claimant at the hearing, I identified that he had used his actual pay in the figures and if he disputed that figure the schedule of loss needed to be corrected. But more pertinently there was no quantification of the unlawful deduction from wages claims. This was an issue that I raised during the hearing because the claimant had not identified the contractual term, what he said his pay should have been, either in terms of an hourly rate or in relation to the hours worked. In the hearing the claimant also said that he disagreed that the payslips reflected what was [paid into his bank account. When I asked him which payslips he identified two payslips which related to October 2022 November 22. I asked the claimant if he had the bank statements and payslips which he produced and which were copied. I went through these with the claimant and I read out the payments into his bank account and that these match the amounts in the payslips. The claimant still maintained there was a discrepancy and he said he had set this out in a table which he did not bring and did not have access to on the first day of the hearing. I told the claimant that he needed to send that document to the respondent and the tribunal on the evening of the first day so that the respondent could look at that and consider it before the start of the hearing on the second day. At no point did he bring that table or any other document relating to that issue to the hearing.

[14]The claimant did not comply with the case management orders but he also failed to comply with the direction of the tribunal to set out clearly what his unlawful deduction from wages claim was. He also had not clearly identified what his holiday claim was.

[15]The respondent’s position was that they felt this put them at a disadvantage in preparation of their case. Mr Ahmed was not a legal representative and they were concerned that they did not have witnesses to deal with the claimant’s new witness statement which he had prepared on the first day of the hearing.

[16]However, when I considered the claimant’s witness statement I decided that it provided some more detail to the allegations that were set out in the ET1 but that the basis of the claims was identifiable from the ET1. For example, in the ET1 the claimant set out the hours that he claimed that he worked and that this was 54 hours per week. In his witness statement he again set out the hours but he claimed that he worked 58 hours per week. I note there is a discrepancy but the respondent was on notice that the claimant had an issue about the hours worked. The ET1 also referred to the National minimum wage which appears to be the claimant’s basis of his claim for the rate of pay.

[17]I consider that there was nothing else that was new or that could really be said to disadvantage the respondent. Obviously, the respondent would have preferred to have seen the witness statement before the hearing. However, the witness statement only ran to just over two pages. Given that the first day finished at 3:45pm on day one and was not due to start until 10 AM on the second day I considered that there was time for the respondent to consider how to respond to the claimant’s case.

[18]I have given consideration to rule 37 of The Employment Tribunal Rules of Procedure 2013. I do not consider that the claim is scandalous, vexatious or that it has no reasonable prospects of success.

[19]For a tribunal to strike out for unreasonable conduct, it must be satisfied either that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible; and in either case, the striking out must be a proportionate response — Blockbuster Entertainment Ltd v James

2006 IRLR 630

, CA. In relation to the manner in which the proceedings have been conducted I do not find that the claimant’s conduct has been unreasonable in the legal sense. He has not done what has been asked of him and largely ignored preparation of the hearing but there is nothing more to take the conduct into the realm of unreasonable as set out in case law. Further, for the reasons set out elsewhere it cannot be said that the claimant’s behaviour would prevent a fair trial at any point because the case is now largely ready. In these circumstances, I do not consider that strike out is proportionate.

[20]I accept that the claimant has not complied with orders of the tribunal. However, for the reasons set out elsewhere I consider that a fair hearing will still be possible and that striking out is not a proportionate response. Whilst I recognise that there has been some unfairness caused to the respondent this is limited. It is not evident to me on the face of it that the claimant has obtained some advantage by not exchanging witness statements when he should have.

[21]The claimant attended the hearing and therefore I find that the claim has been actively pursued by this date. In addition, the claimant did communicate with the tribunal with a schedule of loss on 27 August 2024.

[22]I have given careful consideration as to whether it is no longer possible to have a fair hearing in respect of the claim or part of it because of the claimant not fully setting out his case before attending the hearing. I consider that it is possible to have a fair hearing, the respondent has had a limited time to prepare in response to the clarification of the claimant’s claims on Thursday 17 October 2024 and his witness statement however the respondent has had a shortish period of time to prepare. I consider that this time though short is adequate given the issues involved in this case and that the further information that was disclosed on the first day is more detail of the claim set out in the ET1.

[23]My power under rule 37 is a discretion and I have decided not to exercise that discretion after giving careful consideration to Rule Two which is the overriding objective. I consider that it would not be in the interests of justice to strike out this claim, as I consider that the parties are able to participate in the hearing on the second day so that the witness evidence and submissions can be heard at that time. Changes to claims or responses during the course of litigation and that unpredictability on short notice is a part of the litigation process. Unlawful Deductions from wages

[24]There was a dispute about what the claimant was paid as a gross amount and what he was claiming in this regard. There were some discussions about this during the hearing. During the discussions on 17 October 2024, when I was seeking to clarify the claimant’s claims, the claimant said he did not accept that he was paid the amount set out in his pay slips. He said that this was the case for October and November 2022 and produced both his bank statements and payslips for that period. However, I find that the payments in his bank account correspond with the amounts on his payslips, the amounts set out in the payslips were paid in the corresponding time frame. I find that the claimant was paid the amount set out on his payslips which was £1986.15 per 4 weeks and therefore I accept the respondent’s position that he was paid £496.54 pw gross.

[25]I asked the claimant how the gross weekly figure in his schedule of loss had been calculated. He stated that this had been compiled by somebody at the Citizens Advice Bureau but he was not able to explain that figure to me and what he thought his gross annual salary was. In these circumstances I find that the claimant cannot establish his claims and I preferred the respondent’s evidence that he was paid the amounts that are set out on his payslips.

[26]In summary the respondent's position is that the claimant was paid £400 net per week. According to his payslips, this was £1986.15 gross for four weeks which amounts to £496.54 gross pw. I accept this.

[27]The claimant’s witness statement set out that he was told he would be paid £600pw but it was not clear if this was net or gross. However, he said when he started he was paid £400 and the head chef told him that is what he was being paid now and they could talk about it in the future. The claimant said that he felt some pressure because he wanted to get a spousal visa for his wife to come to this country. This claim was not set out in his ET1 and he did not claim to have mentioned the pay again with the respondent. I do not accept the claimant’s evidence, I do not accept that there was a contractual term to pay the claimant £600 net per week. The claimant came across as an individual with fixed and inflexible thinking patterns. He was not able to explain how he had formed the opinions he had come to. I do not accept that he would have accepted being paid one third less than expected without some further complaint or action if that had been agreed between the parties. I am not satisfied that any discussions about £600pw referred to a net amount or formed a contractual term. Aside from the brief comment about this in his witness statement, the claimant did not mention this alleged agreement anywhere else or at any other time. On 17 October 2024 I repeatedly asked him to set out what is the contractual term that sets out his rate of pay and he has not provided any other evidence about this. I consider this indicates that this was not an agreed contractual term.

[28]I find that the claimant was paid the amount agreed between the parties. The claimant’s ET1 makes reference to the National minimum wage. Therefore, I am taking the claimant’s case as a claim that there was an implied contractual term that he would be paid the national minimum wage and he asserts he was not paid the National minimum wage because of the amount of hours that he worked.

[29]The claimant’s ET1 sets out that he worked 54 hours per week and the witness statement he prepared set out that he worked 58 hours per week. When he was asked about the discrepancy in evidence he said even on the respondent’s own figures they said he worked 9 hours per day plus the half day which was 51 hours per week.

[30]The evidence of Mr Jahangir Ali was that he worked in front of staff in the same restaurant as the claimant and he started at 11 AM and worked until 2 PM and then worked 5 PM to 11 PM. His evidence was that he was usually the first person at work and the claimant did not start before 11 AM despite his claim that he started at 10 AM. Mr Malik’s evidence was similar. He stated that the restaurant was in a small wealthy commuter village and they did not have customers late at night or passing trade. He said that on weekdays the kitchen staff had often finished by 9 PM and weekends it was more like 10 PM. They did not have people eating late and so the kitchen staff left before the restaurant was closed. I found that Mr Malik’s evidence about the sort of trade that he described at the Cookham branch was plausible but further he explained the situation rational with detail and I found him to be credible. I accept that the restaurant where the claimant worked is not the sort of place that would have frequent late night customers and so the kitchen could shut earlier.

[31]I accept Mr Ali’s evidence that there were around four chefs at work which include the head chef, the second chef, the tandoori chef (who was the claimant) and a kitchen porter. I do not accept that the claimant needed to be there two hours before the restaurant opened on week day afternoons and I consider that Mr Malik’s evidence that they had very few customers before 6 PM meant that there was considerable time for kitchen preparation even with a 5 PM start and 5:30 PM opening hours. I am not able to establish the exact hours that the claimant worked because that sort of detailed evidence not been provided to me. He did not keep a record of hours worked and his claim was more a general complaint about the hours. This is not sufficient for an unlawful deduction from wages claim. The claimant needs to particularise his claim fully. I recognise that there was some flexibility in the hours as depending on who was in the restaurant would result in some earlier finishes and some late finishes.

[32]I find that at the most the claimant worked 11 AM to 2 PM and 5 PM to 11 PM. This is nine hours per day. However, I do not accept that he did this every day and that for at least 3 or 4 days a week he finished around 9pm. But even taking the longer hours as happening 5 days a week this amounts to 45 hours per week. In addition, one day he worked half a day which I am prepared to accept was another five hours which means that he worked 49 hours per week. Taking a gross weekly pay of £496.54 and dividing it by 49hours gives an hourly rate of £10.13. This is a higher hourly rate than the national minimum wage in the years 2021 to 2022 and 2022 to 2023. Therefore, the claimant’s claim for unlawful deduction from wages in respect of the national minimum wage for hours worked in 2022- April 2023 fails. I have set out below that his employment terminated on 18 March 2023 which is within the 2022-23 NMW rate. Holiday pay

[33]There is no written contract of employment and therefore in accordance with Regulation 13(3)(b)(ii) of the Working Time Regulations 1998, the claimant’s leave year commences on the date on which his employment begins and each subsequent anniversary of that date. His employment commenced on 28 February 2022, so his leave year runs from 22 February 2022 to 21 February 2023 and his final leave year would have run from 22 February 2023 to the date of termination of employment which as I have set out below is 28 February 2023 to 18 March 2023 which is just 4 weeks. This amounts to 2 days for the period 28 February 2023 to 18 March 2023.

[34]The claimant’s schedule of loss set out that he claimed 28 days of untaken holiday in respect of the leave year 22 February 2022 to 21 February 2023 and pro-rata days for the last leave year. However, the claimant accepted that his workplace was closed on Christmas Day and Boxing Day and I find that he had annual leave on those two days which necessarily reduces his claim in respect of the Feb 22/23 leave year to 26 days.

[35]The respondent submits that the claimant took the following days holiday:a.

3 June 2022

18 November 2022

5 March 2023

19 March 2023

[36]The claimant’s position it that he did not have any holiday except for Christmas Day and Boxing Day. The respondent’s witnesses said that there was some coverage of people taking leave and in particular Mr Kirgir Ahmed’s evidence was that he covered the claimant sometimes when he was on leave such as coming back a day or two late from his rota days off. I accept that there was some covering of holidays by Mr Kirgir Ahmed and I accept that he was a chef who worked at a takeaway only branch close to the branch in which the claimant worked and so he would cover the claimant. I consider that his coverage of the claimant’s work was limited. I accept that the claimant took the 4 days holiday as set out above, reducing his entitlement for leave year Feb 22/23 to 22 days. I did not find the claimant’s claim that he took no holiday credible given that he had a young family and worked 5.5 days per week on his own account. I also found Mr Kirgir’s evidence about covering for the claimant sometimes credible.

[37]This means that the claimant is left with 22 days holiday for leave year Feb 22/23 and 2 days for Feb 23 to end of employment.

[38]A payslip sets out that he was paid £1250 in respect of holiday in November 2023. The respondent struggled to explain the payslips. Mr Ahmed stated that a lady called Heather carried out this type of work for the respondent and she had suffered the bereavement of her mother at the time of the hearing and so was not contactable. They had tried to contact her but she was not responding. Mr Ahmed said that as they had not been aware of the claimant’s claims beyond the ET1 until the hearing they had not been able to get the information in advance and they were not able to get it during the hearing for the reason given. I found this credible. The claimant’s lack of preparation had created problems for all parties.

[39]I find that the £1250 equates to 12.5 days holiday. However, regulation 13(9)(b) of the Working Time Regulations states that holiday cannot be replaced by a payment in lieu except on termination of employment. Therefore, the claimant still retains 22 days holiday not taken in leave year Feb 22/23.

[40]I find that the claimant did not take holiday from 22 February 2023 until his termination date which is 2 days.

[41]The claimant’s claim is that he was not given the effective opportunity to take annual leave, he made specific reference to the busy weekend periods and the inability of chefs to take leave. I find that this has some plausibility. However, I also consider that the claimant was aware for most of that year that his baby was due around March and that he was saving leave for this. I am satisfied that the respondent did not encourage the claimant to take his annual leave and that it did not inform him that it would lapse if he did not take it. Therefore, and in accordance with Smith v Pimlico Plumbers Ltd

2022 IRLR 347

, CA, the claimant’s right to annual leave carries over and accumulates until the end of his employment. Smith v Pimlico Plumbers only applies to Regulation 13 leave not Regulation 13A leave and therefore only applies to the 4 weeks statutory leave which 20 days in respect of the claimant.

[42]A payslip dated 10 March 2023 sets out that the claimant was paid £1986.15 gross which is 4 weeks gross pay. However the respondent has set out that the claimant was paid a different amount to what is on the payslip. It says that on 19 March the claimant was paid £200 net wages and £600 net holiday pay. A bank statement sets out that the claimant was paid those amounts on 19 March 2023 and that on 5 March he was paid £400 net. A payslip dated 11 March 2023 sets out that the claimant was paid £800 gross. However, though this payslip refers to the claimant it has a different employee number to the other payslips and sets out that gross amount paid year to date was £824.58 which is incorrect and does not correspond with the other payslips. This has made what was paid to the claimant unclear. A payslip dated 7 April 2023 sets out that the claimant was paid £761.15 gross pay and £600 gross holiday pay.

[43]The claimant provided payslips and banks statements for the Oct 2022/Nov 2022 periods. The October 2022 payslip is dated 21 October 2022 and there are weekly payments of £400 into the claimant’s bank account from 21 October 2022. The November payslip is dated 18 November 2022 and on that date the weekly payments (and holiday pay) start being paid into the claimant’s bank account.

[44]Overall, I conclude that the claimant was paid the following:a. £400 net on 5 March 2023

b. £800 net on 19 March 2023

c. £1200 net in April 2023.

[45]I conclude that:a. the 5 March 2023 payment was for the week worked until 7 March 2023.

b. On 19 March 2024 the claimant was paid for 2 days work on 17 and 18 March 2024 which was £200 net;

c. The claimant was entitled to 10 days statutory paternity pay which is £246.40 gross.

d. On 19 March 2024 the claimant was paid an additional £400 net. Approximately £230 net of this was paternity pay which leaves another payment of £170.

e. In April 2024 he was paid £1200

f. The claimant therefore received £1370 net above pay and paternity pay in March/April 2023.

g. Using a figure of £73.75 net per day for holiday pay multiplied by 24 days holiday the claimant should have been paid £1770.00. He was however paid £1370 which means that he was not paid £400.0 of holiday pay.

[46]For the reasons above, I find that this claim succeeds in the amount of £400.0. Failure to provide a Written Statement of Terms and Conditions of Employment

[47]It is accepted that the claimant was not provided with a written statement of terms and conditions of employment. However, the claimant is only entitled to an award under this heading if he is successful under other categories of claim. I have found that his claim under Reg 30 of the Working Time Regulations 1998 was successful he is entitled to an award of 2 weeks statutory pay of £993.08. Statutory Paternity Pay and Was There a Dismissal

[48]The claimant claims that he initially had discussions with the head chef about paternity leave in November 2022 and had a further discussion with Mr Malik. Mr Malik’s evidence was that the discussion between him and the claimant was in February 2023 and it was shortly before the claimant actually took the paternity leave. The respondent asserts that the claimant failed to give the required 15 weeks notice. The Paternity and Adoption Leave Regulations 2002 set out that an employee must give 15 weeks notice or the amount of notice that is reasonably practicable. I accept the claimant’s evidence that he spoke about leave in November 2022 to the head chef. I consider that this was an appropriate person for the claimant to raise the issue with, he pursued this further in February. Even though this was shortly before he ended up taking the paternity leave, I find that by virtue of his conversation with the head chef it was not reasonably practicable for the claimant to submit his written declaration before then. Therefore, I consider that he has complied with the notice requirements in relation to statutory paternity pay.

[49]The claimant’s evidence is that he finished work close to midnight on 6 March 2023 and around that time he received a telephone call from his wife saying that she had gone into labour. He went directly home but before he did so he spoke to one or more colleagues. Mr Kirgir Ahmed and Mr Ali could not recall this conversation. I do not find this particularly surprising. The birth of the claimant’s child would be important and memorable to him but for his work colleagues this was just another event linked to work and they are unlikely to recollect what happened. I find that the claimant started paternity leave on 7 March 2023.

[50]It is the events that followed which are in dispute. The claimant says that he thought he was on paternity leave and he called the head chef near the end of the two weeks to arrange his return. At this point the head chef told him that they had found a replacement and he did not need to return. However, the claimant also puts his effective date of dismissal as 7 April 2023 and I am unsure how he has reached that date taking the facts as he alleges them to be. The ET1 puts the claim slightly differently and says that the claimant thought he was on paternity leave for the last two weeks of March 2023 and that he was paid holiday in March 2023. As the claimant says his daughter was born on 7 March 2023 and he left work immediately, I am not sure how his claim that he was on paternity leave for the last two weeks of March is arguable on his own facts.

[51]The claimant claims that he was dismissed on 6 or 7 April 2023 and he was dismissed for an automatically unfair reason which was in relation to taking paternity leave. But he also claims he was not paid for paternity leave.

[52]Mr Malik’s evidence was that he had a meeting around this time with the claimant in which the claimant stated that he wanted to remain an employee but to be paid off the books. Mr Malik’s evidence was that the claimant had said this was because he wanted to claim benefits in addition to working but Mr Malik did not agree to this. His evidence is that the claimant came back to work and worked on 17 and 18 March 2024 and he was paid for this as a set out in his payslip.

[53]The claimant’s evidence was unclear but it seemed to be that his evidence was if his employer could not give him paternity leave he would do three days a week and be paid for that and he would receive additional monies in benefits if he worked three days a week. His evidence was that he would not have been able to work on 17 and 18 March 2024 because he had a 1 ½ year old and a new baby and it would not have been possible.

[54]Overall, I did not find the claimant’s evidence clear or consistent in several ways. I have set out above his varying position on the number of hours he worked. Whilst I recognise that hours did vary according to business demand, it also means that the claimant did not keep accurate records of the hours that he worked and has brought the claim in relation to unlawful deduction from wages on a factual basis which even he is not sure about.

[55]The claimant’s evidence was also that Mr Malik said the respondent does not normally pay paternity pay but to leave it with him.

[56]I have found it hard to determine what the claimant’s evidence is and what his claim is in parts. I do not agree with his rational that he could not possibly have worked on 17 and 18 March because he had a young baby, his statement refers to him taking a child to his mother to be looked after and it would be quite possible for his wife or another family member such as his mother to look after the children for a limited period of time. Further, his wife would be expected to on those days just as she would after the paternity leave ended. There is no specific reason why he could not have attended work during the period in question.

[57]I asked the claimant a number of questions about mitigation of loss. He claimed that he has not found work since his employment with the respondent ended in March/April 2023 and his schedule of loss claims that it would take him a further six months to find employment. I asked the claimant if he had applied for any jobs and he said he had not. He said that it was not possible with his young children and with bringing an appeal in respect of Universal Credit and the work involved in this claim. Elsewhere, the claimant failed to comply with almost every direction of the employment tribunal and aside from submitting a schedule of loss which he states with prepared by the Citizens Advice Bureau he has carried out very little preparation prior to the hearing. The claimant did say that he trained to be a mini cab driver and he was waiting for a document from TfL to start that but that he had started the process last year. I found the claimant’s answers about mitigating his loss far from compelling. He has not applied for a single job and I do not accept that having two young children prevents him working. He has a wife and there is no evidence before me that she works or is unable to look after the children. The respondent submitted that the appellant no longer wanted to work for the respondent because he wanted to claim benefits. The respondent submitted that his actions in a failing to apply for any jobs indicated that this was true and that Mr Malik’s evidence of the conversation with the claimant where the claimant asked to be paid off the books so that he could also claim benefits was true.

[58]I have set out that the claimant did very little in preparation for this case even though in mitigation he stated that preparing this case is one reason he was not able to find a job. I find that these claims damage the claimant’s credibility. I find it completely unreasonable that he has not applied for a job. I recognise that he has taken steps to train as a mini driver but he has had a long period of time to find a job and has taken very limited steps to do so as he has made no job applications. I find that I agree with the respondent that the claimant has not sort work because he prefers to rely on benefits. All of these conclusions lead me to accept Mr Malik’s evidence that the claimant resigned because he wanted to claim benefits. This means that I found that there was no dismissal.

[59]In summary, I have found the following:a. the claimant took a period of paternity leave that commenced on 7 March 2023 and ended on 17 March 2023. I recognise that this is not the full 14 day period however men are not obliged to take the full 14 days as paternity leave;

b. I find that around this time the claimant’s circumstances had changed. He made reference that at the start of his employment he had been trying to bring his wife over from Bangladesh and obtain a spousal Visa for her and clearly by March 2023 his wife and then two children were in the United Kingdom. He did not require the salary for a spousal Visa and he was clearly aware of the potential to work part-time hours such as 15 hours a week and still obtain a substantial amount of universal credit. I have decided that the claimant decided to end his employment after 18 March 2023. I do not consider that the claimant was dismissed because I consider that the claimant had set out that he no longer wished to work the full-time hours that he had and only wanted to work three days a week. The respondent did not agree to this. This does not amount to a dismissal, it is the claimant resigning because he does not want to continue with the employment.

c. I find that there was no dismissal and therefore there cannot be a dismissal for an automatically unfair reason. In any event, even if I had found there was a dismissal, I would have found that it was because the claimant did not want to continue working the hours that he had previously and it was the claimant’s desire to change those hours that would have resulted in a dismissal and that this was not connected with the claimant taking paternity leave.

[60]A payslip dated 10 March 2023 sets out that the claimant was paid £1986.15 gross which is 4 weeks gross pay. However, the respondent has set out that the claimant was paid a different amount to what is on the payslip. It says that on 19 March the claimant was paid £200 net wages and £600 net holiday pay. A bank statement sets out that the claimant was paid those amounts on 19 March 2023 and that on 5 March he was paid £400 net. A payslip dated 11 March 2023 sets out that the claimant was paid £800 gross. However, though this payslip refers to the claimant it has a different employee number to the other payslips and sets out that gross amount paid year to date was £824.58 which is incorrect and does not correspond with the other payslips. This has made what was paid to the claimant unclear. A payslip dated 7 April 2023 sets out that the claimant was paid £761.15 gross pay and £600 gross holiday pay.

[61]The claimant provided payslips and banks statements for the Oct 2022/Nov 2022 periods. The October 2022 payslip is dated 21 October 2022 and there are weekly payments of £400 into the claimant’s bank account from 21 October 2022. The November payslip is dated 18 November 2022 and on that date the weekly payments (and holiday pay) start being paid into the claimant’s bank account.

[62]Overall, I conclude that the claimant was paid the following:a. £400 net on 5 March 2023

b. £800 net on 19 March 2023

c. £1200 net in April 2023.

[63]I conclude that:a. the 5 March 2023 payment was for the week worked until 7 March 2023.

b. On 19 March 2024 the claimant was paid for 2 days work on 17 and 18 March 2024 which was £200 net;

c. The claimant was entitled to 10 days statutory paternity pay which is £246.40 gross.

d. On 19 March 2024 the claimant was paid an additional £400 net. Approximately £230 net of this was paternity pay which leaves another payment of £170.

e. In April 2024 he was paid £1200

f. The claimant therefore received £1370 net above pay and paternity pay in March/April 2023.

g. Using a figure of £73.75 net per day for holiday pay multiplied by 24 days holiday the claimant should have been paid £1770.0. He was however paid £1370 which means that he was not paid £.400.0 of holiday pay.

[64]I have found that the claimant’s employment ended by resignation on 18 March 2023, the claimant did not give one weeks’ notice. The claimant was paid statutory paternity pay for the 10 days which he took as paternity leave. Wrongful Dismissal and Automatically Unfair Dismissal

[65]As I have found that the claimant was not dismissed the claimant was not automatically unfairly dismissed and he cannot succeed in a claim of wrongful unfair dismissal.

[66]For completeness, I find that the claimant has failed to mitigate his loss. As I have set out, he has not applied for a single job. He has taken steps to obtain a minicab licence but I do not consider that this is sufficient mitigation because he has not sought any paid income. I considered that if the claimant had applied for jobs it would have taken him a short period of time to find a new job. I find that it would have taken him four weeks from the date of termination to find a new job and that any period of loss would have been limited to three weeks after the one week notice. Respondent’s counter contractual claim

[67]It is not disputed that around October 2023 the respondent made a payment of £1600 into the claimant’s bank account. I asked the claimant if he believed he had any entitlement to that money and his response was that the payment affected his benefits negatively. He could not identify any contractual right to it. The respondent’s position is that this was a mistake and payments which had been meant for another individual with a name similar to the claimant.

[68]Article 4 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623 sets out that an employer may bring proceedings before an employment tribunal for the recovery of damages or any other sum as long as it arises or is outstanding on the termination of the employment of the claimant. I find that the payment the respondent made to the claimant which it seeks to recover as an overpayment of wages was made in October 2023 which was some months after the termination of the claimant’s employment. Therefore, I find that the respondent cannot satisfy article 4 and the counterclaim must be dismissed as a result.