Mr P Majchrzyk v Nerida Ltd (In Creditors’ Voluntary Liquidation): 4103157/2023

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4103157/2023

Venue Aberdeen

Hearing 2 August 2024

Between

Mr Piotr MajchrzykClaimant

Nerida Ltd (In Creditors’ VoluntaryRespondent

Before

Employment Judge N M Hosie

Date 6 August 2024

JUDGMENT

[1]the claim under s.23 of the Employment Rights Act 1996 is well-founded and the respondent shall pay to the claimant the sum of Three Thousand, Two Hundred and Eighty Pounds (£3,280), subject to the appropriate deductions for Income Tax and National Insurance, as unlawful deductions from wages; E.T. Z4 (WR)

[2]the claim under Regulation 30(1)(b) of the Working Time Regulations 1998 is well-founded and the respondent shall pay to the claimant the sum of Two, Thousand, Five Hundred and Ninety-Three Pounds and Eighty Pence (£2,593.80), subject to the appropriate deductions in respect of Income Tax and National Insurance, as a payment in lieu of annual leave;

[3]the respondent shall pay to the claimant the sum of Eight Hundred and Eighteen Pounds (£818), as damages for breach of contract (failure to give notice of termination of employment); and

[4]the respondent shall pay to the claimant the sum of One Thousand, Two Hundred and Eighty-Six Pounds, (£1,286), in respect of the respondent’s failure to provide the claimant with a written statement of particulars of employment.

REASONS

[1]The claimant, Piotr Majchrzyk, brought various complaints following termination of his employment with the respondent Company which had gone into liquidation. There was no appearance by or on behalf of the respondent at the Hearing.

The Evidence

[2]With the benefit of a Polish Interpreter, I heard evidence from the claimant at the Hearing. He gave his evidence in a measured, consistent and thoroughly convincing manner and presented as credible and reliable. He also submitted a number of documentary productions (“P”). Time-bar

[3]Notwithstanding the terms of the P45 which was issued to the claimant and which gave as his leaving date 25 February 2023 (P.4), I was satisfied, on the evidence, that the effective date of termination of his employment was 26 January 2023. He was required to intimate his claim to ACAS within three months from that date but he did not do so until 30 May 2023. However, I was satisfied that it had not been “reasonably practicable” for him to submit his claim in time and that it had been submitted within a reasonable period thereafter. This meant that I had jurisdiction to hear his claim. The reasons for this are that the claimant is Polish and does not speak English. He was unaware of his right to bring an Employment Tribunal claim. He was unaware of the three month time limit. His claim form was completed and submitted online by a friend.

[4]I now deal with each of the complaints, in turn. Wages

[5]The claimant was employed by the respondent from 16 August 2022 to 26 January 2023 when he was dismissed summarily, without notice. He did not receive any wages for January 2024. He was employed for 26 days that month. On the basis of his last three months’ pay slips (P.1-3), he earned on average £4,807 per month. He should have been paid £4,032 for the 26 days he worked in January 2024.

[6]In March 2024, he received a payment of £752 from the respondent. He was not advised what that payment was for but he assumed that it was for unpaid wages. The shortfall in the payment of his wages for January 2024, therefore, was £3,280. This sum was unlawfully deducted from his wages and should be paid by the respondent to him, subject to the appropriate deductions for Income Tax and National Insurance. Accrued Annual Leave

[7]The claimant worked on average 218.50 hours per month (P.1-3), which equates to 50 hours per week.

[8]He did not take any annual leave when he was employed by the respondent from 16 August 2022 to 26 January 2023.

[9]When his employment ended, therefore, he should have received 117.90 hours pay, by way of accrued annual leave. On the basis of an hourly rate of £22 this amounts to £2,593.80. This sum also requires to be paid to the claimant by the respondent, subject to the appropriate deductions for Income Tax and National Insurance. Notice

[10]The claimant was summarily dismissed. He was entitled to one week’s statutory notice, based on his length of service. The respondent was in breach of contract. The claimant is entitled to an award of damages for that breach. This is based on net pay which, in the claimant’s case, was £818. This sum also requires to be paid by the respondent to him. Written Particulars of Employment

[11]The claimant was not provided with a written statement of his particulars of employment, as he should have been, in terms of s.1 of the Employment Rights Act 1996.

[12]Tribunals must award compensation to an employee where, upon a successful claim being made under any of the Tribunal jurisdictions listed in Schedule 5 of the Employment Act 2002, it becomes evident that the employer was in breach of its duty to provide full and accurate written particulars. All the successful claims in this case are listed in Schedule 5. Amount of Award

[13]A Tribunal must award a “minimum amount of two weeks’ pay in respect of this failure, in addition to the other awards. The claimant’s week’s pay was in excess of the statutory maximum at the time of £643. Accordingly, he is entitled to a payment of £1,286 (£643 x 2) in this regard. Respondent’s Insolvency

[14]The respondent Company is in liquidation. As the claimant is likely to make a claim for the payments due to him to the Insolvency Service, on receipt of this Judgment he should submit a claim to the Service. The contact details are as follows:- Redundancy Payments Office/lnsolvency Service Ladywell House Ladywell Road Corstorphine Edinburgh EH12 7UR Tel: 0131 316 5600