Mr R A Velasquez v Mr R S O Rosas and Chakana London Ltd: 6007949/2024 and 6012080/2024
JUDGMENT
[1]The Claimant’s complaint of discrimination (harassment related to race) is not well-founded and is dismissed.[2]The Claimant’s complaint of unauthorised deductions from pay contrary to Part II Employment Rights Act 1996 is well-founded, in that the Second Respondent made an unauthorised deduction from the Claimant’s pay in respect of wages due on or around 7 July 2024 in respect of the pay period 1 to 28 June 2024.[3]The Second Respondent shall pay the Claimant the sum of £145.98, which is the net sum due to him, in respect of the shortfall of the wages due to the Claimant during the relevant period in order to ensure that he was paid the relevant national minimum wage for all hours worked.[4]The Claimant’s complaint of failure to provide a written statement of particulars of terms and conditions of employment, pursuant to Section 38 of the Employment Act 2002, is well-founded. Judgment & Reasons 1 of 27 30 December 2025[5]The Second Respondent shall pay the Claimant the sum of £1,075.36, equating to two weeks’ pay, in respect of the failure to provide written[6]For the avoidance of doubt, the Claimant’s claim of breach of contract in respect of notice is dismissed, not having been pursued at the hearing.[7]The total sum the Second Respondent shall pay to the Claimant under this judgment is therefore £1221.34, consisting of the following:7.1 Unpaid wages (paragraphs 2 & 3 above): £145.987.2 Failure to provide written statement of particulars of employment (paragraphs 4 & 5 above): £1,075.36.[8]The Second Respondent is ordered to pay the Claimant the sum of £1,221.34 within 14 days of the date this judgment is sent to the parties.REASONS
[1]As set out in paragraphs 17 and 18 below, I apologise to both parties for the delay before I have been in a position to provide this written judgment and reasons. This was due to unexpected family health circumstances.[2]The Claimant is a Peruvian national and a Peruvian citizen. He comes from the capital city of Lima. He is a chef.[3]The Second Respondent is a Peruvian restaurant in Hackney, London E8. The First Respondent (known throughout these proceedings as Mr Ortiz) is the Head Chef and a director of the Restaurant. Mr Dickinson is another director.[4]The Claimant was employed by the Second Respondent as a sous chef from 11 May 2024 until his resignation without notice on 29 June 2024. His working visa was sponsored by the Second Respondent. Throughout his employment his line manager was the First Respondent. Claims and Issues[5]After his employment terminated the Claimant brought two claims in the Employment Tribunal.[6]The first claim (6007949) was against the Second Respondent and made complaints of unpaid wages and breach of contract (failure to pay notice pay), together with a failure to provide a written contract/statement of particulars of employment. The second claim (6012080) was against the First Respondent Mr Ortiz and was a complaint of discrimination on grounds of race. Judgment & Reasons 2 of 27 30 December 2025[7]At a preliminary hearing on 4 March 2025 EJ Elgot ordered that the two claims be consolidated and heard together, and that the Second Respondent be joined as a party to the second claim.[8]At a further preliminary hearing on 6 June 2025 EJ Park spent some time clarifying the nature of the discrimination complaint. The Claimant clarified that he had a single claim of harassment related to race. EJ Park then set out a list of issues, with an instruction to the parties to notify each other and the Tribunal by 27 June 2025 if they considered that the list was wrong or incomplete.[9]At the outset of the hearing I reminded the parties of the issues identified at the preliminary hearing on 6 June 2025. They confirmed that the list captured accurately the issues between them. The agreed list of issues to be determined at the hearing was therefore as follows:9.1 Harassment related to race [Equality Act 2010 section 26)9.1.1 Did the First Respondent do the following things? 9.1.1.1 From 1 or 2 June 2024 onwards call the Claimant “Limena de mierda” [shit from Lima] on repeated occasions”9.1.2 If so, was that unwanted conduct?9.1.3 Did it relate to race? The Claimant says that it is related to race because it relates to the Claimant and First Respondent coming from different area of Peru.9.1.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?9.1.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.9.2 Unauthorised deductions from wages9.2.1 What was the Claimant entitled to be paid under his contract of employment, either as a salary or hourly rate of pay?9.2.2 How many hours did the Claimant work for the Second Respondent during the course of his employment?9.2.3 How much was the Claimant entitled to be paid either under his contract, or to ensure that he was paid the relevant national minimum wage for all hours worked?9.2.4 What sums did the Claimant receive from the Second Respondent by way of wages? Judgment & Reasons 3 of 27 30 December 20259.2.5 Were the wages paid to the Claimant less than the wages he should have been paid?9.2.6 Was any deduction required or authorised by statute?9.2.7 Was any deduction required or authorised by a written term of the contract?9.2.8 Did the Claimant have a copy of the contract or written notice of the contract term before the deduction was made?9.2.9 Did the Claimant agree in writing to the deduction before it was made?9.2.10 How much is the Claimant owed?9.3 Written contract/statement of particulars of employment9.3.1 When these proceedings were begun, was the Second Respondent in breach of its duty to give the Claimant a written statement of employment particulars or of a change to those particulars?9.3.2 If the claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under Section 38 of the Employment Act 2002? If not, the Tribunal mut award two weeks’ pay and may award four weeks’ pay.9.3.3 Would it be just and equitable to award four weeks’ pay?[10]I note that at the time of the Preliminary Hearing in June 2025, EJ Park observed that she had been provided with two documents in which the Claimant had set out in chronological order events that occurred during his employment that he wished to complain about. However on reviewing the documents, E J Park noted that it was “unclear how they amounted to allegations of race discrimination or harassment, rather than more general allegations of poor treatment”. Following discussion at the preliminary hearing, the Claimant confined his harassment complaint to the single issue identified within the list of issues above.[11]Despite this clarification, considerable time was taken up at the final hearing with evidence and cross-examination, on both sides but particularly from the Claimant, in relation to issues which went to general grievances about the other parties and the working atmosphere, and to the character, personalities, behaviour and skills of the various parties and witnesses. I made it clear to both parties on a number of occasions that I considered that these points were unlikely to be relevant or helpful to the issues I needed to decide. I would not, for example, be making decisions about who was or was not a competent chef, or who was or was not responsible for starting a dispute on a particular day. Judgment & Reasons 4 of 27 30 December 2025[12]At a relatively advanced stage in the hearing, when I had heard from the Claimant and from two of the Respondents’ four witnesses, the Claimant asked me to allow into evidence a statement [C3] from his former representative, Mr Alamirano. That “statement”, which was in fact a letter, appeared to me to be seeking to make a new allegation of post-termination victimisation. I explained to the Claimant that if he wanted to make that complaint he would need to make an application to amend, and provide me with an explanation of why the allegation had not been made at an earlier stage, and then I would have to balance the fairness of allowing or refusing the application. The Claimant told me that he did not want to apply to amend his claim to bring a new complaint. He simply wanted me to take the witness statement into account because, in his view, it provided evidence corroborating his account of the working environment at the restaurant. I will discuss this statement further under documents and evidence below, in so far as it is relevant. Documents and evidence[13]The following documents were provided to me:13.1 A “Respondent’s bundle” consisting of 40 numbered pages, including witness statements from the Respondent’s witnesses [R1];13.2 A “Claimant’s bundle”, though actually provided by the Respondent. [R2] This had no page numbers but consisted of documents sent by the Claimant to the Respondent in PDF form and then printed out in the order in which they were sent;13.3 A “witness statement” from the Claimant [C1]. This was actually a shortened version of a longer document sent by the Claimant in response, it appears, to the ET3 presented by Mr Ortiz;13.4 A statement from the Claimant’s partner, Miss Lutz [C2];13.5 A letter from the Claimant’s former representative Mr Altamirano dated 14 September 2025 [C3];13.6 A professional reference about the Claimant’s work as a sous-chef in a Mexican restaurant. The letter is dated September 2025 although it is not clear what the employment dates were [C4];13.7 A handwritten translation provided by the interpreter Miss Stratulat of an exchange of social media messages in Spanish which appears at the end of bundle R1;13.8 A selection of photographs provided by the Claimant.[14]At the beginning of the hearing I was provided with a large bundle of documents which had been handed to my clerk by the Claimant, which he said he wanted to rely on: Judgment & Reasons 5 of 27 30 December 202514.1 This consisted of a lot of individual documents, stapled together with postit notes on the front written in Spanish to say what the documents were. Many of the documents had been heavily marked and annotated with written comments and highlighting. A significant number of them appeared not to be relevant to the case, because they related to the Claimant’s visa, or to his communication with various agencies including the immigration and tax authorities, police, and the Gangmasters and Labour Abuse Authority.14.2 I understand that the Claimant informed my clerk that he had not provided copies of all these for the Respondent or the Tribunal because he could not afford to obtain copies.14.3 I explained to the Claimant that it was not appropriate for me to receive marked documents, and that it was not appropriate for documents to be before me when they had not been shared with the Respondents. I returned the documents to the Claimant and gave him some time to go through the “Claimant bundle” provided by the Respondent [R2] to check whether the documents he was seeking to include were already in that bundle. I said that if there were any documents which were not in that bundle and which he considered relevant to the issues in the case, he should provide those to me so that copies could be made and provided to the Respondent. I would then establish whether there was any objection to them being relied upon and, if so, make a decision on whether or not to admit them.14.4 It subsequently transpired that the Claimant had already dismantled the unpaginated “Claimant bundle” [R2] in the course of his case preparation and had difficulty reconstituting it in order to perform the task I had given him. Following this exercise he provided me with a number of documents. Some I returned to the Claimant, either because they were already in the R2 bundle or because they went to matters which we had already discussed as being irrelevant to the issues (for example, the Claimant’s letters to external authorities). I returned them to the Claimant. I decided to admit a small number of photographs on the basis that, although their relevance was not apparent to me, I did not consider that their introduction would prejudice the Respondent and it seemed to me to be in the interests of proceeding efficiently not to spend further time in arguments about documents.[15]I heard oral evidence under affirmation from the following witnesses:15.1 The Claimant on his own behalf, through a Spanish interpreter;15.2 Mr Ortiz, First Respondent, on his own behalf and on behalf of the Second Respondent, through a Spanish interpreter;15.3 Mr Dickinson on behalf of both Respondents;15.4 Miss Emma Samaria Funez on behalf of the Respondents; Judgment & Reasons 6 of 27 30 December 202515.5 Mr Danny Majo on behalf of the Respondents, through a Spanish interpreter.[16]I also received written witness statements from the following witnesses who did not give oral evidence:16.1 Miss Lutz, the Claimant’s partner, on behalf of the Claimant. She attended the hearing and was prepared to give oral evidence but the contents of her statement were not challenged.16.2 Mr Altamirano, on behalf of the Claimant. This was not in fact a witness statement but a letter to the Tribunal dated 14 September 2025. Mr Altamarino worked a handful of shifts for the Second Respondent for a while in 2024, but he and the Claimant never worked there at the same time. I was informed that Mr Altamirano is in Peru and unwell.16.3 Mr Manuel Canelas Rodriguez, on behalf of the Respondent. I was informed that Mr Rodriguez was in the country but not available.16.4 Ms Rosalbina Benavides Jorquera (known to staff as “Maggie”), on behalf of the Respondent. I was informed that Ms Jorquera was out of the country.[17]The oral evidence and submissions concluded at approximately 16:40 on the second day of the hearing. I therefore reserved judgment. I advised the parties at the time that the pressures of my professional diary were such that it was likely to be two to three months before they received written judgment and reasons.[18]Unfortunately, due to unforeseen family health circumstances, there has been a further delay before I have had time to provide this document. I arranged for a letter to be sent to the parties advising them that this judgment would be sent to them early in 2026. I offer my sincere apologies to all parties for this delay, and thank them for their patience in waiting for this judgment. Fact-finding[19]I make the following findings of fact:[20]The formation of the contract and the commencement of employment.20.1 The Respondent sometimes recruits foreign nationals to work for it. When it does so it acts as a sponsor for the purposes of obtaining a visa to enter the UK in order to work.20.2 The Claimant first met the Respondents at the Second Respondent’s Birmingham restaurant in 2023. He came in with a friend for a drink and asked to see the chef. He told the First Respondent that he was looking for an opportunity to work in a Peruvian restaurant. Judgment & Reasons 7 of 27 30 December 202520.3 The First Respondent offered the Claimant a trial period of work in the Birmingham restaurant. The trial was successful but at that time Mr Ortiz was not able to offer the Claimant a job. They kept in touch after this, while the Claimant was back in Lima.20.4 In early 2024 the First Respondent informed the Claimant that the Second Respondent was going to open a restaurant in London. The Claimant was interested in coming to the UK to work for the Second Respondent.20.5 The Second Respondent offered him a position as a sous-chef under the Foreign Workers programme. It agreed to act as a sponsor for the Claimant’s visa application to enter the UK to work.20.6 The Claimant applied for a UK visa which he paid for with assistance from a friend or cousin who lives and works in Birmingham. He used the services of an immigration solicitor in Birmingham.20.7 At various points during the visa application process Mr Dickinson was in contact with the Claimant and with his solicitor to assist with the paperwork.20.8 The Claimant heard on 2 April 2024 that his visa application was successful. He was granted a residence permit dated 24 April 2024, granting him leave to enter as a skilled worker on a “restricted work” basis until 31 December 2024.20.9 The Claimant arrived at Heathrow on 11 May 2024 and made his way to the restaurant in London. He arrived with his suitcases and said that he had nowhere to go and no money for a hostel or hotel.20.10 The Second Respondent had some mattresses and a sofa in the basement, where it sometimes permitted staff to sleep (the First Respondent also sometimes slept there). The Second Respondent agreed that the Claimant could sleep on the premises if he wished to do so. I find that the Claimant continued to sleep there, by choice, for the entire time he was employed at the restaurant.20.11 I find that the Claimant was not charged for this accommodation, but that it was agreed that he would make a “minimal contribution” towards the utility bills of the restaurant in exchange for being able to sleep there without charge.20.12 I find that the Claimant started work on 12 May 2024 and not, as he asserts, immediately on arrival on 11 May 2024.[21]The terms and conditions of employment.21.1 There is a copy in bundle R2 of a Statement of Terms and Conditions of Employment, dated 12 May 2024 but not signed by either party. I find that the Claimant was not provided with a copy of that document at the start of his employment or by the time he left. The document is in English and Judgment & Reasons 8 of 27 30 December 2025 it seems unlikely that the Claimant would have understood it even if it had been provided to him.21.2 I find, however, that on the first day of the Claimant’s employment, Mr Dickinson showed the Claimant a digital copy of the contract and explained orally the key terms, including how much the Claimant would be paid and the approximate hours per week he would work.21.3 The terms as to pay and hours set out in the document included the following:21.3.1 The Claimant was to be paid a basic salary of £26,500 per annum, paid monthly in arrears by bank transfer on the 7th of each month.21.3.2 The Claimant was required to work the hours necessary for the performance of his job, with shifts/hours being set and recorded by the First Respondent. He was to work on average 45 hours per week.21.4 I consider it inherently improbable that the Claimant would have agreed to travel to another continent and start work in a foreign city, or that he would have been granted a visa, if he had not been told in advance what his salary and hours were going to be, at least in broad terms.21.5 I further consider it inherently improbable that the Claimant would have remained on site and started work without knowing the hours he was expected to work and what he was going to be paid. If he did not already know, he would have asked.21.6 I further note that in his ET1 claim form, the Claimant says that “my verbal contract agreement was £26,000 per annum with a 12 GBP per hour weekly which never happened”. This appears to corroborate the Respondents’ evidence that the Claimant was told at the outset that he would be on a salary of £26,500, reflecting an hourly rate of around £12 per hour. The Claimant denied being told these figures by Mr Dickinson or by the First Respondent, saying that he thought he had got the figures from documents he saw during the visa application process. That begs the question why he referred to a “verbal agreement”. He told me that he would never have accepted a salary of £26,000, but if that was the case, it makes no sense for him to have arrived at and started the job without further salary discussions, as he now says he did.21.7 I therefore accept the Respondents’ evidence and find that the Claimant was provided with information about his pay and hours orally at the outset of his employment, and agreed to it, both at the time and implicitly by staying and working, even though he was not provided with written[22]The restaurant Judgment & Reasons 9 of 27 30 December 202522.1 The Second Respondent’s restaurant in London opened in 2023. It is open during lunchtime and evenings on Friday and Saturday, lunchtime until early evening on Sunday and evenings only on Tuesday to Thursday. It is closed on Mondays.22.2 The First Respondent, Mr Ortiz, is in charge of the kitchen. Mr Dickinson is in charge of the front of house operations. Normally there would be four members of staff working in the kitchen. It was possible for directors to gauge how busy the restaurant was likely to be by looking at a booking app. If the restaurant was busy, there might be five members of staff, and for a quiet shift it might be 3 (including Mr Ortiz). For an evening service, Mr Ortiz would arrive to start preparation (much of which was done the night before) at around 1 pm, with another chef. Someone else would arrive at around 2 pm, and if necessary someone else at around 4pm. Staff would be told their rota in advance by WhatsApp. One or two members of staff were employed on a part-time or casual basis and could be called in when needed.22.3 The Second Respondent has a book-keeper/payroll function. Mr Ortiz would do the rota for kitchen staff. Start times would be fixed. If the restaurant was quiet or busy, sometimes staff would finish earlier or later than scheduled. Mr Ortiz would put the shift times onto the rota on his laptop. Each week he would gather staff hours and send them to payroll. Staff would write their start and finish times in a diary book. If actual hours had increased from what was on the rota, Mr Ortiz would update the rota before sending it to payroll. If employees had any issue with the hours they had been paid, they raised it and it was checked.22.4 Most kitchen staff are paid based on hours worked. Mr Ortiz is on a salary. He is on a worker’s visa. The Claimant and the sous-chef in Birmingham (another sponsored worker on a visa) were also paid on a salaried basis.22.5 Fish, meat and dry foods are delivered by a single supplier. Vegetables are delivered by another supplier. The suppliers have keys and will drop off the supplies from around 6 or 7 am. They have access to the fridge and cold storage facilities at the restaurant. Staff are not normally expected to be present to accept deliveries.22.6 Mr Ortiz also stayed overnight at the restaurant on a fairly regular basis. Other staff members stayed there too. The restaurant had an upstairs flat, where Mr Ortiz sometimes stayed.22.7 In May and June 2024 the restaurant was encountering some financial difficulties and all staff, including the directors, were paid late or in instalments rather than by way of a lump sum on the scheduled payment date.[23]The hours and pay actually worked/received. Judgment & Reasons 10 of 27 30 December 202523.1 The evidence from both parties as to the hours the Claimant actually worked was sparse, contradictory and confusing. Neither party had provided a comprehensive contemporaneous document showing the hours worked by the Claimant.23.1.1 In bundle R2 was a single page from a bound diary showing shift times for Thurs 13, Fri 14, Sat 15 and Sun 16 June 2024. The original book was not available to me and there were no copies of other pages. That page shows the Claimant as working from 4 pm to 11:30 pm on Thursday, 12:30 pm to 11:30 pm on Friday, 12:30 pm to 11:00 pm on Saturday and 12:30 am to 9:30 pm on Sunday.23.1.2 The Respondents provided a “payment calculation” showing the hours they claim the Claimant was scheduled to work in May 2024 (a total of 128 hours) as follows:23.1.2.1 Tuesdays (14th, 21st, 28th): 5 pm to 11 pm (3 x 6 hours)23.1.2.2 Wednesdays (15th, 22nd, 29th): 5 pm to 11 pm (3 x 6 hours)23.1.2.3 Thursdays (16th, 23rd, 30th): 5 pm to 11 pm (3 x 6 hours)23.1.2.4 Fridays (17th, 24th, 31st): 12:30 pm to 3 pm and 5 pm to 11:30 pm (3 x 9 hours)23.1.2.5 Saturdays (18th, 25th): 12 pm to 11:30 pm (2 x 11.5 hours)23.1.2.6 Sundays (12th, 19th, 26th): 12 pm to 8 pm (3 x 8 hours).23.1.3 The same document says that the Claimant worked “very similar” hours in June 2024 until he walked off site before the start of service on 29th June.23.1.4 In his undated Schedule of Loss, the Claimant says that:23.1.4.1 An additional 2 hours should be added to his working hours for each Tuesday, Wednesday and Thursday for work between 9 am and 11 am. He says that deliveries of food would arrive from suppliers and that, because he was on site alone, he had to accept the deliveries, check and store the contents and provide the invoices for the First Respondent. He says that he also had to go out and buy additional supplies. Judgment & Reasons 11 of 27 30 December 202523.1.4.2 An additional 3 hours should be added for 11th May 2024, as he worked from 8 pm to 11 pm following his arrival at the restaurant.23.1.4.3 An additional hour should be added to each Saturday as his start time was 11 not 12.23.1.4.4 An additional two hours should be added to each Sunday as his hours were 11 am to 9 pm, not 12 pm to 8 pm.23.2 Similarly, the evidence from both parties as to the pay the Claimant received (or should have received) was also scarce, contradictory and confusing.23.2.1 The Claimant was, according to the written terms and conditions, due to be paid a salary. However in May 2024 he appears to have been paid based on an hourly rate.23.2.2 According to the Respondent’s payment schedule, in May the Claimant was paid for 129.5 hours (not the 128 hours set out in the schedule of payments) at a rate of £11.40 per hour: total £1,475.23.2.3 According to the Respondent’s schedule, the Claimant was paid his salary of £2208 in June, except that there were deductions of:23.2.3.1 £222, representing 19.5 hours (11.5 and 8 hours) @ £11.40 per hour for the two days (a Saturday 29 and Sunday 30) following the Claimant’s departure without notice.23.2.3.2 £86 in respect of the Claimant’s “minimal contribution” to bills in place of an accommodation charge.23.2.4 The two payslips for May and June 2024 reflect the payments set out above, namely £1,475 in May 2024 and £1,900 in June 2024.23.2.5 In his ET1 claim form the Claimant said that he was owed £670 for hours worked. In a letter from the Claimant’s former representative, undated but apparently accompanying his schedule of loss, the Claimant says that he is still owed £111.22 for the hours he worked. However in the Schedule of Loss itself he says that he is owed £1,311 for May and £2,040.50 for June, making a total of £3,351.50.23.2.6 In his undated Schedule of Loss, the Claimant appears to accept that he received, in transfers from the Second Respondent to his Monza account, the sums of £1475 and £1900 for May and June Judgment & Reasons 12 of 27 30 December 2025 2024, albeit that these were paid in instalments rather than in single payments.23.2.7 In his Schedule of Loss, the Claimant asserts that salaries for a sous-chef in a comparable establishment in London would be in the range of £34,000 to £42,000 per annum. He asserts that a commis chef or kitchen assistant in such an establishment would be paid £26,500 to £28,000 per annum. He says that the Respondent failed to provide “a decent amount”.23.3 My findings in respect of agreed pay, pay received and hours:23.3.1 I accept the Respondents’ evidence and find that as the Claimant started part-way through a month, it was agreed that he would be paid for his work in May 2024 on the basis of the hours he actually worked, at a rate of £11.40 per hour, and then move in June to a salaried basis at the rate of £26,500 per annum or £2,208 per month.23.3.2 I find that the Claimant was actually paid £1,475 in May (for 129.5 hours worked at a rate of £11.40 per hour) 2024 and £1,900 in June 2024 (on the basis of 1/12 of his salary of £26,500, less the deductions purportedly made by the Respondent).23.3.3 I do not find that the Claimant was required to work on the day of arrival on 11 May 2024. The Respondent could not have known in advance exactly when he would arrive and would have had staff rostered to work that evening. In his oral evidence the Claimant told me that he started to count his hours of work from the moment he arrived at Heathrow because he had been told he had to arrive at the restaurant as soon as possible after arrival in the UK in order to start work. It is entirely possible that in a spirit of enthusiasm and goodwill once he arrived, he helped his new colleagues clear up at the end of the service voluntarily, as he got to know them and was being shown around, but I find that the contract of employment started the following day.23.3.4 I do not find that the Claimant’s working hours included the period from 9 to 11 am on Tuesday, Wednesday and Thursday (the Claimant does not dispute the shifts of 5 pm to 11 pm on those days). I note in passing that the Claimant’s evidence about this is inconsistent because in his witness statement he claims that his shift started at 10:30 am. I note that the restaurant was only open in the evening on those days and it makes no sense for food preparation to have started so early when much of it was done before. I note that even Mr Ortiz would not have started work until considerably later and there appears to have been no need for the Claimant to involve himself in deliveries. Mr Ortiz was clear that the Claimant was never asked to work early shifts, and that the Claimant tended to get up at 9 or 10 am, go to the kitchen to make himself a coffee and then go out to shower at the Judgment & Reasons 13 of 27 30 December 2025 gym, returning at 2 or 3 pm. He was occasionally asked to buy a couple of extra items of food if there were items which were in short supply in the kitchen and he was going to a shop to buy himself food, however that appears to be something that could reasonably be asked of an employee, particularly a sous-chef on a salaried contract, without it amounting to an extension of working hours.23.3.5 I do not find that the Claimant’s weekend working hours started at 11 rather than 12. Mr Ortiz is clear that he, along with one other member of staff, started at around noon. I accept that it would make sense for that other member of staff to be the salaried sous-chef and that the Claimant probably started with Mr Ortiz. Mr Ortiz was clear in his evidence that, whilst the shift end time might vary according to how busy the restaurant was, the start time did not. I do not consider it likely that the Claimant’s finish time was an hour later than his rostered hours on every single Sunday, although it may have been on occasion.23.3.6 As a starting point, I therefore consider that the Respondent’s rota figures are on the balance of probabilities likely to be a more reliable indicator of the Claimant’s usual working pattern than the Claimant’s alleged weekly hours.23.3.7 However, matters do not end there. The only two indicators of what work the Claimant actually did come from23.3.8 The Respondent’s rostered hours for May (said to be very similar for June) add up to 46.5 hours per week, which is more than the average of 45 envisaged in the terms and conditions of employment.23.3.9 The 129.5 hours for which the Claimant was actually paid in May 2024, however, are for a period of 3 weeks minus one day, starting on Sunday 12 May. If one adds in the normal rostered Saturday hours of 11.5 hours, that takes the total for that 3 week period to 141 hours, or 47 hours per week – slightly more than the rostered hours.23.3.10 In addition, the diary entries show that in the half week ending on 16 June 2024, the Claimant recorded his actual hours, for the four days of the week which show on the page, as being 2.5 hours more than the normal rostered hours – in other words, around 49 hours. I accept, however, that this is a single snapshot and may simply have been attributable to a particularly busy week. Judgment & Reasons 14 of 27 30 December 202523.3.11 Doing the best I can with the very limited contemporaneous evidence provided by the parties, I find on the balance of probabilities that the Claimant was working an average of 47 hours per week rather than the 45 envisaged in the terms and conditions of employment.(a) the fact that he was paid for 129.5 hours in May 2024, and(b) the diary entries made by Claimant on the single page in the bundle which dates from June 2024.[24]The working relationships24.1 I find that the Claimant and Mr Dickinson maintained a positive and friendly working relationship throughout the Claimant’s employment, and this continued for some time after the Claimant’s departure. In reality they had little to do with one another on a daily basis, as the kitchen staff reported to Mr Ortiz. The many complaints which the Claimant makes about the working environment are primarily directed towards the First Respondent Mr Ortiz.24.2 I find that the relationship between the Claimant and Mr Ortiz deteriorated relatively quickly after the Claimant came to work at the restaurant, having been positive at the time of the Claimant’s trial period in 2023 and during the intervening period. The Claimant says that the relationship started to deteriorate two weeks after he joined. Mr Ortiz says that, although their relationship had previously been positive, the Claimant’s attitude to his job changed soon after he was employed. Mr Dickinson says that during the first few weeks of the Claimant’s employment he was made aware by Mr Ortiz and others that the Claimant was “beginning to cause problems in the kitchen” and had a “poor attitude towards the job and towards the other members of staff”.24.3 The Claimant makes accusations that Mr Ortiz had problems with alcohol and that Mr Ortiz’s consumption of alcohol became a problem from around 9 pm onwards, resulting in “bad temper and erratic behaviour”. That allegation is strenuously denied by Mr Ortiz, although he accepts that sometimes he and other staff would drink after the shift had finished, or if he attended the restaurant when off duty, for example at a family celebration. Other staff members who gave evidence also deny that Mr Ortiz’s behaviour gave any cause for concern.24.4 I accept that in the context of a business of this kind, particularly where a number of members of staff are residing on the premises and socialising together there after work, it is possible that there were occasions when alcohol was consumed in the workplace after shift hours.24.5 I make no finding as to whether or not Mr Ortiz had any problem with alcohol consumption, or whether this was ever apparent at work. I note that in his ET1 the Claimant is clear that this plays no part in his allegation of discrimination: he says in terms “However, he was in a sober state of mind while insulting me on a daily basis”. This accusation therefore appears to have no bearing on the issues before me in this case, and to be calculated to undermine Mr Ortiz’s character generally. I consider that there is no need for me to make any finding on this issue as it is irrelevant. Judgment & Reasons 15 of 27 30 December 202524.6 The Claimant also alleges that Mr Ortiz behaved inappropriately towards, and/or wanted to pursue a relationship with, a female member of the kitchen staff. That allegation is, again, strenuously denied, both by Mr Ortiz and by the member of staff concerned. Again, this accusation appears to me to be an attempt to undermine Mr Ortiz’s character, is not relevant to the issues in the case, and I make no findings about it.24.7 It seems to be common ground that there was an occasion when, in the absence of Mr Ortiz, the Claimant dismissed a female member of the kitchen staff when he did not, as sous-chef, have the authority to do so. The Claimant’s explanation for this appears to be that he considered she could not do her job properly and that he was protecting her from Mr Ortiz, who he thinks wanted to pursue a relationship with her. However both Mr Ortiz and the individual concerned dispute this. Her perception of the incident is that the Claimant had previously shouted at her and made remarks such as “women are useless in the kitchen” and that when he dismissed her he said that she should be working front of house. I make no finding about the reason for the Claimant’s actions, but it is clear that he took action which was not within his power and that Mr Ortiz was critical of him for this. Both individuals appear to regard this incident (about which the Claimant was subsequently spoken to) as a turning point in the relationship. The Claimant said in oral evidence that the alleged discriminatory comments about him started after this.24.8 The Claimant also complains that Mr Ortiz routinely made derogatory remarks about his competence, capability and skill as a chef.24.9 I have no doubt that the Claimant genuinely believes that Mr Ortiz’s criticisms of his work performance were unfair and unwarranted. He thinks of himself as a skilled and experienced chef. He describes himself as having a “great understanding of the Peruvian dishes”.24.10 However I equally have no doubt that Mr Ortiz genuinely believes that his criticisms of the Claimant were warranted. He considers that the Claimant upset other members of kitchen staff, was disrespectful and took it upon himself to do things he had no authority to do, particularly when Mr Ortiz was out of London visiting the Birmingham restaurant. He considers that the Claimant was confrontational and had many arguments with colleagues and that this caused relationships within the team to break down.24.11 A number of other members of staff mention argumentative or abusive behaviour from the Claimant. Ms Jorquera, in her witness statement, said that she was the assistant Head Chef at the restaurant and that the Claimant was under her supervision for several weeks. She said that although initially friendly, the Claimant’s attitude changed and he started to argue with her constantly, and to be disruptive with other staff. She says that he seemed keen to change recipes or the presentation of dishes, and that he blamed her and Ms Funez for problems with the recipes and presentation. Judgment & Reasons 16 of 27 30 December 202524.12 It seems to me, having heard from all the witnesses in this case, that there was a clash between the Claimant and Mr Ortiz in terms of their personalities and their approach to the work they did. The Claimant is critical of Mr Ortiz, by way of example, for not writing down recipes and insisting that staff commit them to memory and follow them. The Claimant appears to have found this frustrating, and was keen to be given the opportunity to demonstrate his own skills as a chef and develop his career. Mr Ortiz, on the other hand, considers that he learned his recipes over a long period and wants staff to develop by following his instructions before making changes. He was frustrated that, particularly in his absence, the Claimant would make changes to his recipes or prepare or present them incorrectly, which he considered diminished them. He saw the process of mentoring as something which saw staff develop over an extended period from a junior level.24.13 It appears likely in my judgment that the Claimant may have been impatient to bring about change and demonstrate more formal authority over junior staff. He seems to have thought that some of the junior kitchen staff were not necessary in the kitchen, were performing work for which they were not qualified or were not performing their work adequately, and he seems to have thought that Mr Ortiz was not adequately managing these things. The Claimant appears to have thought that Mr Ortiz was old-fashioned and Mr Ortiz appears to have thought that the Claimant was disrespectful, divisive and abrasive.24.14 As I explained to the Claimant many times during the hearing, it is not my function to decide who was right or wrong in terms of the disputes between the Claimant and Mr Ortiz about how to run a kitchen, or who is or is not a good chef. Those matters are not relevant to the issues I have to decide. The important thing to note is that everyone seems clear that over the weeks following the Claimant’s appointment, the relationship between him and Mr Ortiz deteriorated and they clearly had significant differences of opinion and a poor view of one another.[25]The allegation of discrimination25.1 In his ET1 the Claimant alleges that after he had been working at the restaurant for 2 weeks, the First Respondent started to harass him: “On a daily basis he referred to me as incapable of doing tasks because I was from Lima… He also shouted and made remarks of my mixed race again minimizing my work skills because I am from Lima”.25.2 Following considerable discussion at the Preliminary Hearing in June 2025, the Claimant “confirmed he had a single claim for harassment related to race”. The allegation was that from 1 or 2 June 2024 onwards, the First Respondent called him “Limena de mierda” (shit from Lima) on repeated occasions. At the Preliminary Hearing the Claimant said that he considered that this comment related to his race because he and the First Respondent were from different parts of Peru.25.3 Both the Claimant and Mr Ortiz are Peruvian nationals. Judgment & Reasons 17 of 27 30 December 202525.4 Neither in his witness statement nor in oral evidence did the Claimant provide any further detail or context about the alleged use of these words. In answer to my questions, the Claimant says that he considered the remarks to be about race because Mr Ortiz was making them with a “racist feeling. He has a resentment for people from Lima”.25.5 Mr Ortiz denies using the alleged words or anything like them. He told me that on occasion the Claimant would say that although he is Peruvian, he would prefer to be Chilean. In answer to questions from me, Mr Ortiz denied even using the words in friendly banter or in jest or in the context of rivalry between different regions of Peru.25.6 Mr Ortiz told me in his oral evidence that his Peruvian background has been important for him in his professional career. He said that the Claimant told him that he was proud to be from Lima rather than from a “shanty street”, and that he would prefer to be Chilean because “Peruvians are shit”. Mr Ortiz says that he did not really understand these comments. Mr Ortiz explained that there are three main regions in Peru, the coastal region (which includes Lima, and where the Claimant is from), the mountainous region and the jungle region (where Mr Ortiz’s family is from). Mr Ortiz said that there are some divisions and rivalries between those areas. He said that there are some colloquial derogatory terms for the jungle and mountain regions which can be used, generally by Limans, in a belittling way. However Mr Ortiz says that he has no issue with people from any area of Peru and that he lived in Lima himself for two to three years. He has never previously experienced Limans who consider themselves superior because they come from Lima. He has had staff from all three regions in his kitchen.25.7 Mr Ortiz said that when he and the Claimant met in Birmingham in 2023 he was impressed by the Claimant and they became good friends. He thought that the Claimant would progress with him if they worked together, and tried to teach the Claimant to a level where he could command a kitchen, but considers that the Claimant abused the opportunity and did not want to understand. He described the Claimant has having a “big ego” and thinking he was better than other people, and said that he (Mr Ortiz) does not like that attitude. Mr Ortiz says that when the Claimant left the restaurant he said he would take revenge.25.8 Ms Funez informed me that she never saw or heard any argument in which Mr Ortiz used the alleged words towards the Claimant, and that she has never seen or heard Mr Ortiz treat anyone badly.25.9 Mr Majo informed me that he had been badly treated by the Claimant, including an occasion when he was called “worthless” and food he had prepared was thrown against the wall”. Mr Majo says that he never heard Mr Ortiz say the alleged words. The Claimant says that Mr Majo witnessed the remarks being made.25.10 Mr Dickinson informed me that he was often in the kitchen and never heard Mr Ortiz say anything “bad or negative” towards the Claimant. He says that Judgment & Reasons 18 of 27 30 December 2025 during his employment, the Claimant seemed “generally content” and never raised any grievance during his employment.25.11 In his witness statement, Mr Rodriguez said that he had never witnessed racist or offensive language from Mr Ortiz towards the Claimant. He said that on occasions the Claimant made remarks such as “claiming that he was superior because he comes from Lima”. The Claimant says that Mr Rodriguez witnessed the alleged remarks.25.12 In her witness statement Ms Jorquera said that the Claimant mentioned to her many times that in many respects he considers himself to be Chilean and that he hated Peruvians. She says that he often called her “chola”, which I understand to be an insulting and derogatory term used about people from the mountainous region of Peru. Ms Jorquera considers that the Claimant thought that he was superior because he was from Lima and had lived in Chile for many years. Ms Jorquera says that she never heard Mr Ortiz used the alleged words towards the Claimant.25.13 In her witness statement the Claimant’s partner Ms Lutz said that she is unable to comment on the incidents at the restaurant as she was not a witness to them. In general terms she says that during their time together (they met in mid 2024, after the end of the Claimant’s employment) she has not heard him make discriminatory remarks about Peruvians or anyone else.25.14 The Claimant said in his oral evidence that all the witnesses were lying and only he was telling the truth.25.15 I have to decide on the balance of probabilities whether or not I consider that Mr Ortiz used the words alleged. In doing that, I have to consider whose account I consider to be more reliable.25.16 I note that there are no witnesses who were present at the time of the alleged events who corroborate the Claimant’s account of the alleged remarks being made to him. Two of the witnesses relied on by the Respondent (one of whom gave oral evidence) are people the Claimant expressly named as having been present. I can attach only limited weight to the evidence of the various members of staff who gave evidence, because I recognise that they are still employed in what is clearly a close team and that they would not wish to be disloyal to their manager Mr Ortiz. I attach very little weight to the evidence from members of staff who did not attend the hearing to be cross-examined.25.17 I do note, however, that some of the witnesses go beyond simply saying that they heard nothing. Two staff members, albeit that neither of them attended the hearing and therefore I give their evidence very little weight, corroborated Mr Ortiz’s account that the Claimant at times made remarks suggesting that he was superior because he was from Lima, or had spent time in Chile. It seems that the Claimant’s background as a Liman was probably more significant in the Claimant’s mind than in that of Mr Ortiz. Judgment & Reasons 19 of 27 30 December 202525.18 I do have some concerns about the reliability of the Claimant’s account. I note that the way in which he has expressed some of his allegations in this case suggests that, in his mind, his criticisms have become exaggerated to the point of no longer being credible. He asserts, for example, that Mr Ortiz “kept me in the restaurant 24/7… I had no choice but to sleep there”. However in circumstances where he arrived at the restaurant with his luggage, no accommodation and no means for paying for accommodation, it seems that the offer of somewhere to sleep, with no charge, was intended to help the Claimant and cannot credibly be characterised as sinister.25.19 Similarly, the Claimant describes himself as having “escaped” from his employment when he walked out in June 2024, although he could have found alternative accommodation at any point, and carried on exchanging perfectly cordial messages with Mr Dickinson throughout July 2024.25.20 The Claimant’s claim in respect of pay has also changed over time. Initially he claimed that he had not been paid what he was contractually entitled. However in his schedule of loss he expanded this claim to encompass the money he thinks he should have received if the Respondents had paid him what he considers to be an appropriate salary for a sous-chef. He also claimed to be entitled to be paid for time he spent travelling from Heathrow airport before he even started work at the restaurant.25.21 All of these points led me to have some doubts about the credibility of the Claimant’s account. I also note that the Claimant did not make any complaint about the alleged remarks during his employment.25.22 In contrast, I found the evidence from Mr Ortiz to be consistent and credible. It was clear that he found some aspects of the way the Claimant behaved frustrating. However he seemed genuinely puzzled by what he understood to be a belief on the Claimant’s part that Limans were somehow superior to other Peruvians. It was clear from his evidence that he has managed staff from all regions of Peru without problems. If, as the Claimant says, Mr Ortiz had a negative view of Limans, it rather begs the question why Mr Ortiz would have had such a positive relationship with the Claimant when they first met and up until a few weeks after they started working together. It seems more likely that the change in their relationship was attributable to the dispute over the Claimant dismissing Ms Funez from the kitchen, and their disputes over working practices.25.23 On the balance of probabilities, I therefore find that Mr Ortiz did not make the alleged remarks, or any other derogatory remarks, about the Claimant being from Lima.Law
[26]Harassment related to race (Equality Act 2010 Section 26)26.1 Race, for the purposes of the Equality Act, is defined at Section 9, although this is not an exhaustive definition. It covers colour, nationality Judgment & Reasons 20 of 27 30 December 2025 (including citizenship) and ethnic or national origins. It covers people who share a particular racial group, and this can include people who are excluded from a particular racial group (e.g. “non-British”) [Orphanos v Queen Mary College [1985] IRLR 349, HL].26.2 Ethnic origins has been held to have two essential characteristics – a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive, and a cultural tradition of its own, including family and social customs and manners. It can also involve additional non-essential characteristics such as a common geographical origin or descent from a small number of common ancestors, a common language (not necessarily peculiar to the group), a common literature peculiar to the group, a common religion different from that of neighbouring groups or from the general surrounding community, and being a minority or an oppressed or dominant group within a large community [Mandla and another v Dowell Lee and others [1983] ICR 385, HL.26.3 In respect of nationality and national origins, it has been held that, for example, the constituent countries of the UK are all part of the same nation (British), but that people from those different constituent countries have distinct national origins (Welsh, Scottish, English, Northern Irish) [Northern Joint Police Board v Power [1997] IRLR 610, EAT, BBC Scotland v Souster [2001] IRLR 150, Inner House Ct Sess]. However in a first instance decision in 2021 (based on ACAS guidance in force at the time) it was held that the concept of national origins does not cover regional distinctions, for example mocking someone based on stereotypes of people from Liverpool [Ryan v Robertson & Son Ltd ET case no. 4108351/21].26.4 Harassment, according to Section 26 of the Equality Act, is unwanted conduct related to a relevant protected characteristic (such as race), where that conduct has the purpose or effect of violating the other person’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the other person.26.5 The conduct can be single or one-off, provided that it is sufficiently serious in character to give rise to an “environment” or state of affairs [Weeks v Newham College of Further Education [EAT 0630/11], General Municipal and Boilermakers Union v Henderson 2015 [IRLR] 451, EAT].26.6 Whether or not the conduct has the relevant purpose may well require a tribunal to draw inferences from the surrounding circumstances. In assessing whether the conduct has the relevant effect, the tribunal will need to take into account the (subjective) perception of the recipient, the other circumstances of the case, and whether it is (objectively) reasonable for the conduct to have had that effect. In assessing reasonableness, the intention of the perpetrator may be a relevant consideration [Chawla v Hewlett Packard Ltd 2015 [IRLR] 356, CA].[27]Unauthorised deductions from pay – Section 13 Employment Rights Act 1996 Judgment & Reasons 21 of 27 30 December 202527.1 Under the National Minimum Wage Act 1998 Sections 17 and 18, a worker who has not been paid the National Minimum Wage is entitled to claim the difference between the NMW and what he or she was actually paid as an unlawful deduction from wages.27.2 Under Section 13 ERA, an employee has the right not to suffer unauthorised deductions from wages.27.3 Under Section 13(3), a “deduction” is defined thus: “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…”.27.4 The wages “properly payable” will be determined by the employee’s legal entitlement, usually set out in the contract.27.5 Under Section 13(1), a deduction will not be unlawful if:(a) it 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 agreement to the deduction in writing.27.6 Under Section 13(2), a deduction will only be a “relevant provision of the worker’s contract” for the purposes of Section 13(1) if it is contained in (a) one or more written contractual terms of which the employer has given the worker a copy before the deduction is made, or (b) one or more contractual terms (whether express or implied and, if express, whether oral or in writing) whose existence and effect… the employer has notified to the worker in writing before the deduction is made.[28]Written contract/statement of particulars of employment28.1 Section 1 of the Employment Rights Act 1996 requires an employer to provide an employee with a written statement of the particulars of their main terms and conditions of employment.28.2 Where an employer fails to provide a written statement, Section 38 of the Employment Act 2002 provides that, on a successful claim being made to the Employment Tribunal under a number of jurisdictions (including discrimination and unlawful deductions claims), the employee is entitled to an award of compensation in addition to any award they receive in respect of the main claim.28.3 The compensation payable under Section 38 is as follows:28.3.1 The tribunal must award a minimum of two weeks’ pay (unless there are exceptional circumstances which would make an award unjust or inequitable);28.3.2 The tribunal may, if it considers it just and equitable in the circumstances, award the higher amount of four weeks’ pay. Judgment & Reasons 22 of 27 30 December 202528.4 For these purposes, a week’s pay is gross pay, subject to a statutory cap.[29]National Minimum Wage29.1 Under Regulation 30(a) of the National Minimum Wage Regulations 2015 “time work” is work that is not salaried hours work and is paid for under the contract by reference to the time for which a worker works. For time work, the worker is entitled to be paid at the national minimum wage for the hours they are actually working.29.2 Under Regulation 21 of the National Minimum Wage Regulations 2015 “salaried hours work” is work done under the worker’s contract which meets the following conditions:29.2.1 The worker is entitled to be paid an annual salary…29.2.2 The worker is contractually entitled to that payment in respect of a number of hours in a year, whether those hours are specified in or ascertained in accordance with the contract (the basic hours)29.2.3 The worker is not contractually entitled to payment in respect of the basic hours other than the payments mentioned above, and29.2.4 The worker is contractually entitled to be paid… in instalments which are equal and occur not more often than weekly and not less often than monthly…29.3 A worker whose work meets the requirements of Regulation 21 is entitled to be paid for the hours they are working. Although Regulation 27 says that a salaried hours worker is treated as working when he or she is available at or near a place of work and is awake for the purposes of working, case law makes it clear that mere physical presence on the premises will not equate to work: the worker must be working [Wray v JW Lees & Co (Brewers) Ltd [2012] ICR 43].29.4 From 1 April 2024 the National Minimum Wage for workers over 21 was £11.44 per hour gross.Conclusions
[30]Harassment related to race (Equality Act 2010 Section 26)30.1 I have set out in detail above, in my findings of fact, my reasons for concluding on the basis of the evidence before me that the First Respondent did not, on the balance of probabilities, call the Claimant “Limena de mierda” on repeated occasions from 1 or 2 June 2024.30.2 I would in any event have gone on to find that, even if that term was used, it did not relate to race as defined in the Equality Act. The alleged comment Judgment & Reasons 23 of 27 30 December 2025 was said to be made by someone of Peruvian nationality and national origins, to someone else of Peruvian nationality and national origins. It was, at its highest, an alleged comment to do with which geographical region of Peru (and specifically, which city) the Claimant came from. I see nothing about the alleged words or the context in which they were allegedly used to warrant any inference that the words related to race, colour, ethnicity, nationality (including citizenship) or national origins.30.3 It follows that my conclusion is that the Claimant’s complaint of discrimination (harassment related to race) is not well-founded and is dismissed.[31]Unauthorised deductions (Section 13 Employment Rights Act 1996). 31.1 For the reasons set out in detail under my findings of fact, I find that:31.1.1 For the month of May 2024, the agreement between the parties was that the Claimant would be paid for the hours he worked at an hourly rate of £11.40 per hour.31.1.2 During May 2024, the Claimant worked 129.5 hours. At the agreed contractual rate of £11.40 per hour, that would have resulted in basic salary of £1476.30 gross.31.1.3 However, as at April 2024 the National Minimum Wage was £11.44. The Claimant was entitled to be paid for the 129.5 hours he worked at the NMW as “time work” under Regulation 30 of the National Minimum Wage Regulations. His entitlement was £11.44 x £129.5 = £1481.48 gross.31.1.4 The Claimant was in fact paid £1512.13 gross, £1475 net, for May 2024 according to his payslip for that period. The reason why he was paid more than was contractually agreed is not clear, but it appears that there was no shortfall during the May time period, and that the Claimant was in fact overpaid by £30.65 gross.31.1.5 For the month of June 2024, the agreement between the parties was that the Claimant would be paid a salary of £26,500 per annum, or £2208.33 per month, gross.31.1.6 I find that the hours actually worked during the month of June by the Claimant in June were 47 hours per week. Having terminated his employment without notice before his shift on 29 June 2024, he was not entitled to payment for the last 2 days of the month. For the 4 weeks he did work, the total hours were therefore 4 x 47 = 188.31.1.7 Based on the NMW of £11.44, the Claimant was therefore entitled to be paid 188 x £11.44 = £2150.72 gross for this salaried time work. Judgment & Reasons 24 of 27 30 December 202531.1.8 The Claimant was in fact paid £1,974.09 gross, £1,900 net according to his payslip for June 2024. That leaves a shortfall of £176.63 between what was properly payable and what the Claimant was actually paid. However it is appropriate to deduct what appears to be an overpayment for May 2024 of £30.65. That leaves an underpayment of £145.98 gross.31.1.9 Mr Dickinson properly accepted in his evidence and submissions that the National Minimum Wage the company had applied was slightly too low. He also accepted that the hours on the documentation before me differed from the estimated rota in the Respondent’s payment calculation. He was clear that if the Respondent had underpaid the Claimant what was properly due to him for the hours he worked, it would need to pay the difference.31.1.10 I find that the Respondent was not entitled to make any deduction in respect of utility bills as a contribution towards accommodation. There is nothing in the written particulars of employment in respect of deductions for bills (and in any event, those written particulars had not been provided to the Claimant by the time the deduction was made). I have seen no other evidence that the deduction had been notified to or agreed by the Claimant in writing for the purposes of Section 13(1) or (2).31.1.11 I therefore find that the Claimant’s claim for unlawful deduction from wages is well-founded. The Claimant is entitled to be paid the sum of £145.98 gross in respect of the pay period 1 to 28 June 2024. I note from the payslips that the Claimant was on zero tax rate during his employment with the Respondent, presumably because his earnings did not reach the personal allowance. Any national insurance contributions on such a small sum are likely to be so minimal that it would be disproportionate to deduct anything to reflect this. I therefore award net compensation for unlawful deduction from wages in the sum of £145.98.[32]Written statement of particulars of employment (Section 38 Employment Act 2002)32.1 As the Claimant’s claim in respect of unauthorised deduction from wages has succeeded, I must proceed to consider his claim in respect of a failure to provide written particulars of employment.32.2 Mr Dickinson frankly accepts that the written particulars were not provided to the Claimant and that this was an oversight on his part. The Claimant had not received the particulars at the time the proceedings were brought.32.3 In those circumstances I must award the minimum award of two weeks’ pay unless there are exceptional circumstances which would make it unjust or inequitable to do so. No such circumstances have been advanced on behalf of the First Respondent and none are apparent to me. Judgment & Reasons 25 of 27 30 December 202532.4 I have a discretion to award the higher sum of four weeks’ pay if I consider that it would be just and equitable to do so. I do not consider that it would be just and equitable to do so in this case. I accept that this was a genuine oversight on the part of Mr Dickinson. The statement of particulars of terms and conditions had been drafted prior to the commencement of the Claimant’s employment. The Claimant had been made aware of the terms as to pay prior to commencing employment, and Mr Dickinson discussed pay and hours with him orally at the start of employment.32.5 The Claimant never requested a copy of the contract. However I find that he was aware of the key terms in relation to pay and hours because he referred to “verbal agreement” about pay and hours in his ET1. I do not accept that this was simply inserted by an adviser without his input as I cannot see how the adviser would be aware of the figures. The period of employment came to an end after only about 6 or 7 weeks, and it is understandable that the matter was then overlooked. I also note that this is a small business which was going through financial difficulties during the period of the Claimant’s employment, resulting in late payments to all employees including the directors.32.6 I therefore award the minimum period of 2 weeks’ gross pay. Based on the salary the Claimant should have received in order to ensure that he was being paid the NMW for the work he did, I find that his gross pay should have been 47 (hours) x £11.44 (rate) x 52, or £27,959.36 per annum. A week’s gross pay is £537.68, which is below the statutory cap. Two weeks’ pay is therefore £1,075.36, and that is the sum which I award. Summary of Conclusions[33]For the reasons set out above, I find that:33.1 The Claimant’s complaint of discrimination (harassment related to race) is not well-founded and is dismissed.33.2 The Claimant’s complaint of unauthorised deductions from pay contrary to Part II Employment Rights Act 1996 is well-founded, in that the Second Respondent made an unauthorised deduction from the Claimant’s pay in respect of wages due on or around 7 July 2024 in respect of the pay period 1 to 28 June 2024.33.3 The Second Respondent shall pay the Claimant the sum of £145.98, which is the net sum due to him, in respect of the shortfall of the wages due to the Claimant during the relevant period in order to ensure that he was paid the relevant national minimum wage for all hours worked.33.4 The Claimant’s complaint of failure to provide a written statement of particulars of terms and conditions of employment, pursuant to Section 38 of the Employment Act 2002, is well-founded. Judgment & Reasons 26 of 27 30 December 202533.5 The Second Respondent shall pay the Claimant the sum of £1,075.36, equating to two weeks’ pay, in respect of the failure to provide written33.6 The total sum the Second Respondent shall pay to the Claimant under this judgment is therefore £1221.34, consisting of the following:33.6.1 Unpaid wages (paragraphs 2 & 3 above): £145.9833.6.2 Failure to provide written statement of particulars of employment (paragraphs 4 & 5 above): £1,075.36.33.7 The Second Respondent is ordered to pay the Claimant the sum of £1,221.34 within 14 days of the date this judgment is sent to the parties.