Mr J Lutas v WL Business Enterprises Ltd (in creditor’s voluntary liquidation): 6009523/2024
EMPLOYMENT TRIBUNALS
Case No 6009523/2024
Between
Mr J LutasClaimantWL Business Enterprises Ltd (in creditor’s voluntary liquidation)Respondent
Before
Employment Judge MaceyIn person for claimantNot represented for respondentDate 12 May 2025
REASONS
[1]The complaint of unauthorised deductions from wages is well-founded. The respondent made an unauthorised deduction from the claimant's wages in the period from 1 April 2020 to 1 August 2024 (inclusive).[2]The respondent shall pay the claimant £19,737.05, which is the gross sum deducted. The claimant is responsible for the payment of any tax or National Insurance.[3]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 four weeks’ gross pay. In accordance with section 38 Employment Act 2002 the respondent shall therefore pay the claimant £2800.00[1]The respondent’s name is amended to WL Business Enterprises Ltd (in creditor’s voluntary liquidation).[2]This hearing was by video (CVP). The claimant had the benefit of a Portuguese translator. The claimant had difficulty joining the video hearing at 2 pm and the video hearing only started at approximately 2.25 pm.[3]The respondent did not attend the hearing. The liquidators of the respondent had notified the Tribunal, in writing, prior to the hearing that they would not be attending today’s hearing and that the respondent did not contest the claim.[4]The claimant gave evidence for himself. The claimant had not provided a written witness statement. It was agreed that the claimant’s claim form, attachment to his claim form and his email dated 28 January 2025 to the Tribunal would comprise his evidence.[5]There was no bundle of documents but the claimant did provide the following documents to the Tribunal 5.1. A signed written contract of employment dated 27 March 2019; 5.2. A payslip dated 4 May 2020; 5.3. A pay document setting out payslip components for the period 2 April 2020 to 1 May 2020; 5.4. Three bank statements of the claimant; and 5.5. Three mileage logs.[6]There were two other documents which were in Portuguese and a written translation had not been provided. I explained to the claimant that translations in writing are needed for documents before the Tribunal. Not just for the benefit of the Tribunal but for any member of the public observing the hearing who wished to see a copy of the documents in front of the Tribunal. I, therefore, did not refer to the content of these two documents. CLAIMS AND ISSUES[7]The claimant’s complaint is for unlawful deduction from wages in respect of different factual matters.[8]Firstly, the claimant claimed the difference between an agreed monthly salary of £1,800 net per calendar month and the £1,500 net per calendar month that he received from 1 April 2020 onwards.[9]Secondly, the claimant claimed food allowance for three months in 2024.[10]Thirdly, the claimant’s case was that he had not been paid the national minimum wage from April 2020 for the work that he had completed on site for the respondent, and the driving of himself and his work colleagues to and from their (and his) accommodation/ s and various work sites that he had undertaken.[11]In his claim form the claimant had also alleged that the respondent had not paid him the correct amount of statutory sick pay. During the hearing the claimant confirmed that the correct amounts had been paid to him since presenting his claim form and that he no longer wished to pursue this element of his claim for unlawful deduction from wages.
FACTS
[12]At the beginning of March 2019, the claimant was living in Portugal. He responded to a job advertisement for a general labourer with the respondent and the respondent contacted him and they reached agreement regarding the conditions of his employment via email on or around 15 March 2019 (I have not seen a copy of these emails in English). The agreement between the claimant and the respondent was that the claimant be paid £1,800.00 per calendar month net of tax and national insurance, that the respondent provide him with accommodation in the United Kingdom, that the respondent provide the claimant with food and, that the respondent pay for the claimant to visit Portugal four times a year.[13]There is a signed written contract of employment between the claimant and the respondent. This does not include those terms. In fact, the contract of employment does not specify the amount of the claimant’s salary, it only states that the claimant will be paid monthly in arrears.[14]Further the signed written contract of employment states that no additional payments will be made for overtime worked and it does not state that the claimant is entitled to any period of contractual sick pay.[15]In respect of holidays the signed written contract of employment states that the claimant was entitled to 28 days of paid holiday per full working year, in addition to statutory/ bank holidays. I have no evidence about when the claimant took his holidays whilst he was working for the respondent. According to his signed written contract of employment he was not required to work on public holidays. No evidence was presented to me that he did in fact work on public holidays. I therefore find that the claimant did not work on public holidays.[16]The claimant started his employment with the respondent on 27 March 2019. At the start of the claimant’s employment the respondent did pay the claimant £1,800.00 net of tax and national insurance (there are bank statements of the claimant’s bank account for the period from 14 November 2019 to 13 December 2019 and for the period from 14 February 2020 to 13 March 2020 which confirms this), it did provide the claimant with accommodation and the claimant was provided with food that was prepared by a cook.[17]The accommodation was free and the respondent did not charge the claimant anything in respect of the accommodation.[18]The claimant was very rarely provided with payslips so, he does not know what he was being paid as a gross amount at this time.[19]From April 2020 until the claimant presented his claim the respondent unilaterally (without the claimant’s agreement) paid the claimant £1,500.00 net of tax and national insurance. There is a payslip dated 4 May 2020 confirming the claimant was paid £1,500.00 net (£1,759.50) gross for the period. There is also a bank statement for the period 14 April 2020 to 13 May 2020 which confirms this net payment too. I find that the claimant’s gross monthly pay from 1 April 2020 was £1,759.50 per calendar month and that the claimant’s net monthly pay from 1 April 2020 was £1500.00 per calendar month.[20]The signed written contract of employment states that the claimant’s hours of work per week were 35 hours. In fact, the claimant was on site (as a general labourer) for the respondent as follows: Monday to Friday from 8 am to 6 pm with one hour for lunch (usually between 1 pm and 2 pm, sometimes the claimant only took 30 minutes as a lunch break but then he would finish work early at 5.30 pm) and then Saturday from 8 am to 1 pm. So, in actual fact the claimant was working on site 50 hours per week.[21]In addition to the hours that the claimant worked on site for the respondent he also drove his work colleagues from their different accommodations to their different work sites in the morning before driving to his work site. Then in the evening he would collect his work colleagues from their different work sites and drop them off at their different accommodations before returning to his accommodation.[22]Between 27 March 2019 and summer of 2023 the claimant’s work colleagues all stayed at different accommodations, this meant the claimant had to leave at approximately 6 am in the morning to be able to collect all of his work colleagues to take them to the different sites and for the claimant then to arrive at the claimant’s assigned site for that day for 8 am.[23]Between 27 March 2019 and summer of 2023 in the evening the claimant would start collecting his work colleagues at their different sites after he had finished at his site at 6 pm (during the week, 1 pm on Saturday ) and then he would drive them to their different accommodations before arriving at his accommodation at approximately 7.30 pm depending on the site locations.[24]From the summer of 2023 the claimant and his work colleagues all lived at the same address provided by the respondent. The claimant still needed to take his work colleagues to different sites before attending his assigned site for 8 am. He would leave at approximately 6.15 am/ 6.20 am in the morning to be able to do this.[25]From summer of 2023 in the evening the claimant would start collecting his work colleagues from different sites before returning them to the same accommodation as himself.[26]The claimant says on average between the start of his employment and the summer of 2023 when he was working (and not on sick leave) he would drive on average three to four hours each working day. From summer of 2023 until the claimant went on sick leave he was driving on average two to two and a half hours per day, sometimes three if traffic was bad (but not more than three hours).[27]Three mileage logs state the time the claimant commenced driving in the morning and evening each day in July 2023, September 2023 and October 2023. These logs also specify the mileage that the claimant travelled but not the time spent travelling in hours and minutes.[28]On 9 September 2022 the claimant had an accident at work. After this he underwent several surgeries and was left with three fingers on his left hand and permanent paralysis. He was absent from work on sick leave from 9 September 2022 until the end of March 2023.[29]The claimant next went on sick leave from the end of April 2024 due to pain in his right kidney. He attended hospital and had surgery and was on sick leave for two weeks. The claimant worked for a few days in mid-May 2024 but due to ongoing symptoms (urinating blood) his GP signed him off on sick leave. The claimant had a further surgery in respect of his right kidney on 31 July 2024. The claimant was still on sick leave when he presented his claim but did go to work afterwards in September 2024.[30]While the claimant was on sick leave the respondent unilaterally changed the benefit of food being provided to its employees. From 1 May 2024 the respondent decided that it would give approximately £11 a day for food and that food would no longer be cooked for its employees. The claimant was informed retrospectively of this verbally (not in writing). The claimant received £286.00 on 1 May 2024 as his food allowance for May 2024. The claimant did not receive any food allowance on 1 June 2024, 1 July 2024 or 1 August 2024. The claimant was informed by his line manager (verbally) at the respondent that the respondent would not pay him the food allowance while he was absent on sick leave.[31]While the claimant was on sick leave he did not receive the correct statutory sick pay but since then the respondent has paid the correct amounts and no further payments for statutory sick pay are owed to the claimant and he is no longer claiming these deductions.[32]The claimant complained to HM Revenue and Customs (HMRC) in 2022 and 2023 that the respondent was not paying the national minimum wage rate in respect of the hours the claimant was working on site for the respondent. The claimant did not inform HMRC about the time he spent transporting his work colleagues in addition to the hours he worked on site. No evidence was presented to me on whether any audit in respect of the national minimum wage was carried out by HMRC or what was the result of any audit.[33]The claimant started ACAS early conciliation with the respondent on 1 July 2024. ACAS conciliation ended on 12 August 2024.[34]The claimant presented his claim form on 25 August 2024. The claimant was still employed by the respondent when he presented his claim.[35]The claimant was 55 years old when he presented his claim to the Tribunal.[36]The respondent’s creditors commenced winding up proceedings of the respondent on 12 November 2024.
LAW
[37]Employers must pay workers the correct national minimum wage.[38]The relevant national minimum wage hourly rates for the claimant (according to his age) were: 38.1. From April 2020 - £8.72; 38.2. From April 2021 - £8.91; 38.3. From April 2022 - £9.50; 38.4. From April 2023 - £10.42; and 38.5. From April 2024 - £11.44.[39]Some payments must be included when the national minimum wage is calculated. These, amongst others, include: 39.1. Income Tax and National Insurance contributions; and 39.2. accommodation provided by an employer above the offset rate. If the accommodation is free, the offset rate is added to the worker’s pay for the purposes of calculating the national minimum wage.[40]An employer will be considered to be providing accommodation where: 40.1. Accommodation is provided in connection with the worker's contract of employment; or 40.2. The employer (or a connected person or company) owns or rents the property the worker lives in, even if there is no direct link between the job and the accommodation; or 40.3. The employer (or an owner, business partner, shareholder or director) receives a payment or benefit from the worker's landlord or a member of the landlord's family.[41]An employer may therefore be considered to "provide accommodation" even where it does not own the property occupied by the worker.[42]The relevant weekly accommodation offset rates were: 42.1. From April 2020 - £57.40; 42.2. From April 2021 - £58.52; 42.3. From April 2022 - £60.90; 42.4. From April 2023 - £63.70; and 42.5. From April 2024 - £69.93.[43]The relevant daily accommodation offset rates were: 43.1. From April 2020 – £8.20; 43.2. From April 2021 – £8.36; 43.3. From April 2022 – £8.70; 43.4. From April 2023 – £9.10; 43.5. From April 2024 - £9.99.[44]The 'pay reference period' for the national minimum wage is the period of time the pay covers. If paid monthly, the pay reference period is 1 month.[45]On average, a worker must get the minimum wage for each 'pay reference period'. The average hourly rate is calculated by dividing 'gross' pay each time someone's paid (total pay before tax and National Insurance (NI) are deducted) by how many hours the claimant worked for that pay.[46]Generally, the monetary value of benefits in kind are not added to the gross pay of the worker, the accommodation offset rate is an exception to this general rule.[47]The pay allocated to a particular pay reference period is generally one of the following: 47.1. Pay received during that period. 47.2. Pay earned in that period but not received until the next pay reference period. (Regulation 9(1)(a)-(b), National Minimum Wage Regulations 2015 (NMWR).)[48]The different categories of work for the purposes of the national minimum wage are salaried hours work; time work; output work and unmeasured work.[49]Salaried hours work is work which is done under a worker’s contract and which meets the following conditions under regulation 21 of the NMWR): 49.1. the worker is entitled under the contract to be paid an annual salary, or an annual salary and one or both of a ‘performance bonus’ and a ‘salary premium’; 49.2. 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’); 49.3. the worker is not contractually entitled to payment in respect of the basic hours other than the payments mentioned above; and 49.4. the worker is contractually entitled to be paid, where practicable and regardless of the number of hours actually worked during the payment period, in instalments which are equal and occur not more often than weekly and not less often than monthly, or occur monthly and vary but have the result that the worker is entitled to be paid an equal amount in each quarter. 50. ‘Time work’ is work that is not salaried hours work and is(a) work that is paid for under a worker’s contract by reference to the time for which a worker works, or(b) work that is paid for under a worker’s contract by reference to a measure of output per hour or other period of time during which the worker is required to work (Regulation 30 of the NMWR). Essentially a worker being paid according to the number of hours at work and who is not paid an annual salary. 51. ‘Output work’ is work that is paid for according to the number of pieces that a worker makes or processes, or the number or value of sales or deals that the worker makes (Regulation 36 of the NMWR). 52. ‘Unmeasured work’ is defined in Regulation 44 of the NMWR as ‘any other work that is not time work, salaried hours work or output work.’[53]For unmeasured work, the time when a worker is absent from work and not working, such as a period of holiday or sickness absence, is not counted as working time. Even if the absence is paid.[54]In respect of time spent travelling when the worker’s category of work is unmeasured work Regulation 47 of the NMWR states, “The hours when a worker is travelling for the purposes of unmeasured work are to be treated as hours of unmeasured work.”[55]In Aslam and others v Uber BV and others ET/2202550/15 at paragraphs 127 to 128 a Tribunal held:"127. It follows that the Uber driver performs 'unmeasured work'. The hours of unmeasured work in any pay reference period are to be computed in accordance with NMWR, reg 45. In the ordinary case, the relevant hours are the "hours … worked." We were not asked to determine any issue as to how that provision should be applied, save for Mr Linden's submission that travelling time to and from home 'counts'. He relied on reg 47, which provides: The hours when a worker is travelling for the purposes of unmeasured work are to be treated as unmeasured work. The argument was not elaborated and Mr Reid did not make submissions in response. We do not consider that reg 47 is apt to include time spent by drivers who live outside the London territory travelling between home and the territory or returning home from it. Travel "for the purposes of work" is not, it seems to us, to be equated with travel for the purposes of getting to and from work.128. But a driver's hours spent returning to his territory to continue working after an out-of-territory trip commencing within it would, it seems to us, count as reckonable time."[56]The interpretation in Aslam is similar to the treatment of travel time for the purposes of salaried hours work, time work and output work under the NMWR where the time spent travelling that the worker would otherwise be working is treated as working time save where the worker is travelling between their home (or a place where the worker is temporarily residing other than for the purposes of working) and their normal place of work or between their home (or a place where the worker is temporarily residing other than for the purposes of working) and an assignment, i.e., commuting.[57]In Taylors Service Ltd (dissolved) and anor v Commissioners for HM Revenue and Customs 2024 EAT 102 (a case on time work and travelling time), the Employment Appeal Tribunal considered whether time spent travelling to and from workers’ homes to farms around the country, on transport provided by the employer, constituted time work for the purposes of Regulation 30 of the NMWR or Regulation 34 of the NMWR. The workers were paid for this travel time but at an hourly rate considerably lower than national minimum wage rates. Although the tribunal considered that travel time from the workers’ homes to the first assignment would not be deemed to be time work under Regulation 34 NMWR, because it was not undertaken at a time when the workers would ‘otherwise be working’, it held that the time spent travelling was time work within the definition of Regulation 30 NMWR and so national minimum wage rates were payable.[58]The EAT held that the tribunal had erred: the Supreme Court’s approach in Royal Mencap Society v Tomlinson-Blake and another case 2021 ICR 758, SC, as to the interpretation of Regulations 30 NMWR and 32 NMWR also applied to Regulations 30 NMWR and 34 NMWR, meaning that those regulations needed to be read together. Looking at the NMWR as a whole, the EAT considered that Regulation 34 NMWR confirmed that the drafter of the legislation did not consider that travelling was ‘work’ (both in its ordinary sense and including the specific travelling activities listed in Regulation 20 NMWR). Accordingly, time spent ‘just’ travelling would not be time work under Regulation 30 NMWR unless it was deemed to be such by Regulation 34 NMWR. This did not mean that work could not be undertaken while travelling – such as where someone is working on documents – and, where work was undertaken, this would fall within the definition of ‘time work’ under Regulation 30 NMWR. Although the EAT noted that this particular case was unusual – because it was accepted that the workers could sometimes be obliged to travel up to four hours each way on top of their normal workday – Regulation 34 NMWR did not distinguish between ‘ordinary commuting’ and other types of travel to work. Had this been the intention, it could have been included within the wording.[59]If a worker has not been paid the national minimum wage, they can make a claim to an employment tribunal. A worker may bring a claim alleging an unauthorised deduction from wages before an employment tribunal under the protection of wages provisions contained in Part II of the Employment Rights Act 1996 (ERA) to recover the difference. For the purposes of such a complaint, it will be presumed that the worker qualified for the national minimum wage and that the worker was paid less than the national minimum wage, unless the contrary is shown (section 28(1)–(2) of the National Minimum Wage Act 1998).[60]Regulation 45 of the NMWR sets out two options for identifying the hours of unmeasured work to be done: 60.1. calculating the actual hours worked during the pay reference period, in which case the employer must pay the NMW for each of those hours, or 60.2. coming to a ‘daily average’ agreement of hours to be worked.[61]A worker who is not paid the national minimum wage will be deemed to be entitled under the contract of employment to the higher of either: 61.1. the difference between what the worker is paid and the national minimum wage, or 61.2. the national minimum wage arrears adjusted to take account of any increase in the national minimum wage rate at the time the arrears are determined by applying the following formula: dividing the amount of the underpayment by the national minimum wage rate applicable at the time of the underpayment (which converts the amount of the underpayment into a notional period of unpaid time) and then multiplying this by the national minimum rate applicable at the time the arrears are determined (section 17 of the National Minimum Wage Act 1998 (NMWA)).[62]The worker must choose either to present a claim to an employment tribunal or complain to HMRC. The worker cannot take the same issue through two legal processes.[63]In respect of complaints to HMRC compliance officers may look across the whole workforce to identify any workers who have not been paid the minimum wage. National Minimum Wage compliance officers follow up all the complaints they receive. In a typical investigation, the employer and workers will be interviewed and records examined. Compliance officers will take steps to ensure that the national minimum wage is paid (including any back-pay).[64]Section 13(9) of the ERA provides that an employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract or the worker has previously signified in writing his agreement or consent to the making of a deduction. An employee has the right to complain to an Employment Tribunal of an unauthorised deduction from wages pursuant to section 23 of the ERA.[65]The statutory time limit, in respect of the claim of unauthorised deductions from wages, is set out in section 23(2) and section 23(4) of the ERA, namely: “(2) subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with - (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (b)…. (4) where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further time as the tribunal considers reasonable.”[66]The effect of early conciliation by ACAS (“Early Conciliation”) on this time limit is set out in Section 207(B) subsections (2) – (4) of the ERA, namely, “(2) In this section-(a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of Section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and(b) Day B is the day on which the complainant or the applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section. (3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If a time limit set by a relevant provision would (if not extended by this section) expire during the period beginning with Day A and ending one month after Day B, the time limit expires at the end of that period.”[67]Where a claim is made in respect of a ‘series of deductions’, the three-month time limit starts to run from the date the last deduction in the series was made (section 23(3) of the ERA). Whether there is a ‘series’ of deductions is a question of fact, requiring a sufficient factual and temporal link between the underpayments. This means that there must be a sufficient similarity of subject matter, so that each event is factually linked, and a sufficient frequency of repetition. Whether a claim in respect of two or more deductions constitutes a claim in respect of a ‘series’ of deductions is essentially a question of fact. In answering that question, all relevant circumstances must be taken into account, including the deductions’ similarities and differences; their frequency, size and impact; how they came to be made and applied; and what links them together.[68]One obvious example of a series of deductions is where an employee is paid less than the contractually agreed rate (or the national minimum wage) over a number of weeks, months or even years.[69]Section 23(4A) of the ERA, which was inserted into the ERA by the Deduction from Wages (Limitation) Regulations 2014 SI 2014/3322 (DWLR), imposes a two-year limit on the backdating of unlawful deduction from wages claims presented on or after 1 July 2015. This means that a claimant can now only claim in respect of a series of deductions going back two years preceding the presentation of their claim. The two-year limit on the backdating of claims only applies to claims for ‘wages’ as defined in section 27(1)(a) of the ERA — namely, any fee, bonus, commission, holiday pay or other emolument referable to employment, whether payable under the worker’s contract or otherwise.[70]In Afshar and ors v Addison Lee Ltd ET Case No.3306435/20, an employment tribunal held that the two-year backstop on wages is unlawful. It observed that the provision had been introduced by the DWLR under powers set out in section 2(2) of the (now repealed) European Communities Act 1972 (ECA). The tribunal accepted that the Government was authorised to make regulations imposing a time limit on the enforcement of the EU-derived right to holiday pay, as long as that time limit did not breach the EU principle of equivalence (which requires EU-derived rights to be no more difficult to enforce than equivalent domestic rights).[71]However, in light of previous Supreme Court and Court of Appeal decisions on the purpose and context of section 2(2) of the ECA, the tribunal was concerned that the Government had applied the changes made by the DWLR to all wages claims, not just those related to EU-derived holiday pay, in order to avoid a breach of the principle of equivalence. In the tribunal’s view, Parliament did not envisage that section 2(2) of the ECA could lawfully be used to limit primary domestic rights which were not derived from EU law, particularly those of such fundamental importance as the right not to suffer unlawful deductions from wages. A change such as this to an Act of Parliament would have required primary legislation. Therefore, the tribunal held that the backstop in in section 23(4A) of the ERA was ultra vires and of no effect.[72]Currently, I do not have to follow this decision because it has been made by another Tribunal and it does not bind me. I can decide whether I agree with the reasoning of the Tribunal. However, given the far-reaching implications of the decision in Afshar, it is highly likely to be appealed to the Employment Appeal Tribunal.[73]Section 1 of the ERA states the following about the provision of a statement of initial employment particulars: “(1) Where a worker begins employment with an employer, the employer shall give to the worker a written statement of particulars of employment. (2) Subject to sections 2(2) to (4)—(a) the particulars required by subsections (3) and (4) must be included in a single document; and(b) the statement must be given not later than the beginning of the employment. (3) The statement shall contain particulars of— (a) the names of the employer and worker, (b) the date when the employment began, and(c) [in the case of a statement given to an employee], the date on which the employee's period of continuous employment began (taking into account any employment with a previous employer which counts towards that period). (4) The statement shall also contain particulars, as at a specified date not more than seven days before the statement [(or the instalment of a statement given under section 2(4) containing them)] is given, of— (a) the scale or rate of remuneration or the method of calculating remuneration, (b) the intervals at which remuneration is paid (that is, weekly, monthly or other specified intervals), (c) any terms and conditions relating to hours of work including any terms and conditions relating to— (i) normal working hours, (ii) the days of the week the worker is required to work, and (iii) whether or not such hours or days may be variable, and if they may be how they vary or how that variation is to be determined,(d) any terms and conditions relating to any of the following— (i) entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the worker's entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated), (ii) incapacity for work due to sickness or injury, including any provision for sick pay, [...][ (iia) any other paid leave, and (iii) pensions and pension schemes, (da) any other benefits provided by the employer that do not fall within another paragraph of this subsection,(e) the length of notice which the worker is obliged to give and entitled to receive to terminate his contract of employment or other worker's contract,(f) the title of the job which the worker is employed to do or a brief description of the work for which he is employed,(g) where the employment is not intended to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end, (ga) any probationary period, including any conditions and its duration,(h) either the place of work or, where the worker is required or permitted to work at various places, an indication of that and of the address of the employer, (j) any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made, (k) where the worker is required to work outside the United Kingdom for a period of more than one month—(i) the period for which he is to work outside the United Kingdom, (ii) the currency in which remuneration is to be paid while he is working outside the United Kingdom, (iii) any additional remuneration payable to him, and any benefits to be provided to or in respect of him, by reason of his being required to work outside the United Kingdom, and (iv) any terms and conditions relating to his return to the United Kingdom [,] (l) any training entitlement provided by the employer, (m) any part of that training entitlement which the employer requires the worker to complete, and (n) any other training which the employer requires the worker to complete and which the employer will not bear the cost of. (5) Subsection (4)(d)(iii) does not apply to a worker of a body or authority if— (a) the worker's pension rights depend on the terms of a pension scheme established under any provision contained in or having effect under any Act, and (b) any such provision requires the body or authority to give to a new worker information concerning the worker's pension rights or the determination of questions affecting those rights. (6) In this section "probationary period" means a temporary period specified in the contract of employment or other worker's contract between a worker and an employer that— (a) commences at the beginning of the employment, and (b) is intended to enable the employer to assess the worker's suitability for the employment.”[74]Where a Tribunal finds in favour of an employee in a complaint of unlawful deduction from wages, and the Tribunal finds that the employer has failed to provide the employee with a written statement of employment particulars, the Tribunal must award the employee an additional two weeks’ pay unless there are exceptional circumstances which would make that unjust or inequitable, and may, if it considers it just and equitable in all the circumstances, order the employer to pay an additional four weeks’ pay. The weeks’ pay is subject to the statutory cap.[75]Where an employee has been paid less than the national minimum wage, their weekly pay should be inflated to the correct level (Paggetti v Cobb UKEAT/136/01). The calculation date for a week's pay for when an employee or worker was employed or working for the employer at the date the claim was presented, is that date. The applicable statutory cap for the purpose of this calculation is £700.[76]Section 221 of the ERA states: “(1) This section and sections 222 and 223 apply where there are normal working hours for the employee when employed under the contract of employment in force on the calculation date. (2) Subject to section 222, if the employee's remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of a week's pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week. (3) Subject to section 222, if the employee's remuneration for employment in normal working hours (whether by the hour or week or other period) does vary with the amount of work done in the period, the amount of a week's pay is the amount of remuneration for the number of normal working hours in a week calculated at the average hourly rate of remuneration payable by the employer to the employee in respect of the period of twelve weeks ending—(a) where the calculation date is the last day of a week, with that week, and(b) otherwise, with the last complete week before the calculation date. (4) In this section references to remuneration varying with the amount of work done includes remuneration which may include any commission or similar payment which varies in amount. (5) This section is subject to sections 227 and 228.[77]For employees with variable pay or variable hours, and employees without normal working hours, calculating a week's pay under the ERA 1996 involves working out their average remuneration over a 12-week period. Average remuneration is the total remuneration payable in respect of the 12-week period divided by the total number of hours actually worked.[78]If the calculation date falls on the last day of a week, the period of 12 weeks is taken as ending on that day. If not, the 12-week period is the 12 calendar weeks ending with the last complete week before the calculation date. For a weeklypaid employee, the last day of the week is the day on which the employee is paid; for all others, it is Saturday (section 235(1)).
CONCLUSIONS
[79]Firstly, when taking into account the dates of early conciliation with ACAS and the date the claimant presented his claim to the Tribunal in respect of the claimant’s claim of unlawful deduction from wages any deductions made prior to 2 April 2024 could, on the face of it, be out of time. Is the two-year backstop on wages in Section 23(4A) of the ERA unlawful?[80]I have read the Tribunal’s reasoning in the case of Afshar and I agree with the Tribunal’s view that Parliament did not envisage that section 2(2) of the European Communities Act 1972 could lawfully be used to limit primary domestic rights which were not derived from EU law, particularly those of such fundamental importance as the right not to suffer unlawful deductions from wages. A change such as this to an Act of Parliament would have required primary legislation. Therefore, I also conclude that the backstop in in section 23(4A) of the ERA was ultra vires and is therefore of no effect in this claim. Was there an unlawful deduction from wages – contractual entitlement to £1,800 net per calendar month?[81]I conclude, given the information the claimant provided to me under oath that there was a contractual agreement that he would receive £1,800 per calendar month in his hands, i.e. net of tax and national insurance. The respondent unilaterally changed this agreement and paid the claimant £1500.00 per calendar month from 1 April 2020.[82]The claimant’s signed written contract of employment does not specify that he is entitled to contractual sick pay.[83]I conclude that the respondent made unlawful deductions from the claimant’s wages between the following dates: 83.1. 1 April 2020 – 9 September 2022; 83.2. 1 April 2023 to end of April 2024; and 83.3. For a few days in mid-May 2024 (that would have been paid at the start of June 2024 and therefore the start of June 2024 is the applicable date for the calculation of the statutory time limit for bringing the claim).[84]The last deduction from the claimant’s wages was made within the statutory time limit for bringing a claim for unlawful deductions from wages. The question is whether this is last in a series of deductions starting from 1 April 2020 and ending at the start of June 2024. If it is such a series then all these deductions will be within the statutory time limit for bringing a claim for unlawful deductions from wages.[85]There were two breaks during this time. One from 10 September 2022 until 31 March 2023 and the second from the end of April 2024 to the start of June 2024. In terms of the similarities, these deductions are in respect of the same subjectmatter, which is monthly pay owed under the contract of employment.[86]The reason why there is a break between the deductions is because the claimant was absent on periods of sick leave, not because the respondent paid the contractually agreed salary during those breaks. The unlawful deductions have a high frequency of being made between 1 April 2020 and the start of June 2024. Taking all these facts into account, I conclude that there was a series of unlawful deductions from the claimant’s wages between 1 April 2020 and the start of June 2024.[87]In respect of calculating the amount of the unlawful deductions from wages the claimant was unable to give evidence about the gross amount of his salary as agreed at the start of his employment. I have decided that the most sensible way in which to calculate this is to use the net amounts which have been deducted and then I will “gross up” the amount calculated.[88]The net monthly amount that was deducted from the claimant’s wages was £300. As some of the periods of deductions are not entire months I need to calculate a daily rate for the deductions. To achieve this, I have divided £300 by 260 (full working days per year). This equals £1.15.[89]For the period 1 April 2020 to 9 September 2022 (which is a period of 29 months and 9 days) the claimant is owed £8,710.35 net (£300 x 29 plus £1.15 x 9).[90]For the period of 1 April 2023 to the end of April 2024 (which is a period of 13 months) the claimant is owed £3,900.00 net (£300 x 13).[91]For the deduction made at the start of June 2024 for a few days the claimant worked in May 2024, I do not know how many days he worked and what he was paid for those days. So, it is not possible to calculate the deduction made at the start of June 2024 for the few days in May 2024 that the claimant worked for the respondent.[92]The total amount of net deductions is therefore £12,610.35 (£8,710.35 plus £3,900). Explanation of grossing up of award[93]As the above amount has been calculated using net figures the amount needs to be increased to a gross figure. This is called grossing up.[94]The calculation for grossing up for a marginal rate taxpayer is as follows: (Grossing up sum = (true net loss) / (1 – marginal tax rate of 20%).[95]In this case this would be as follows: £12,610.35 / 0.80 = £15,762.94.[96]The amount awarded to the claimant in respect of this unlawful deduction from his wages is £15,762.94 as a gross amount.[97]I also need to gross up the net monthly amount of the deduction because there may be an overlap with any failure to pay national minimum wage to the claimant.[98]The net monthly amount deducted was £300. Applying the calculation for grossing up to this amount is as follows: £300 / 0.80 = £375. Was there an unlawful deduction from wages – food allowance of £286 per calendar month?[99]Firstly, as the food allowance was provided as a cash amount from 1 May 2024 I conclude that this is “wages” for the purposes of section 27 of the ERA.[100]The respondent did fail to pay the claimant the food allowance of £286 on 1 June 2024, 1 July 2024 and 1 August 2024.[101]This deduction was not made because of a statutory requirement. The claimant had not agreed to this deduction being made, due to him being absent on sick leave, in writing prior to the deduction (either by a signed written contract or any other prior signed consent).[102]I conclude that the failure to pay the claimant the food allowance on 1 June 2024, 1 July 2024 and 1 August 2024 was an unlawful deduction from the claimant’s wages.[103]I award the claimant £858.00 (£286 x 3) as a gross amount for not paying the claimant’s food allowance. Did the respondent fail to pay the claimant the national minimum wage?[104]Firstly, I need to decide what category of work the claimant’s hours of work fall under for the purposes of the NMWR.[105]I considered the requirements for salaried hours work set out below: Was the claimant entitled under the contract to be paid an annual salary, or an annual salary and one or both of a ‘performance bonus’ and a ‘salary premium’?[106]The signed written contract of employment did not specify an annual salary or any salary. The claimant and the respondent had agreed via emails on or around 15 March 2019 that the claimant would be paid £1,800 per calendar month net of tax and national insurance. Although annually this would equate to £21,600 net of tax and national insurance in my view the fact that a gross annual salary has not been specified in the signed written contract of employment nor agreed prior to the parties entering into the signed written contract of employment means that this first requirement is not met.[107]However, if I am wrong on that point I have considered the next requirement below. Was the claimant contractually entitled to that payment in respect of a number of hours in a year, whether those hours were specified in or ascertained in accordance with the contract (the ‘basic hours’)?[108]The signed written contract of employment stated the claimant’s working hours were 35 hours per week.[109]However, to be salaried hours work the respondent must have been able to precisely calculate the total number of hours in a year. Where a set number of hours per week has been specified in a contract of employment it is not straightforward to calculate the number of hours in a year, because a year is not exactly 52 weeks. A year is sometimes 52 weeks plus one day or 52 weeks plus two days.[110]In my view it was not possible for the respondent to precisely calculate the total number of hours in a year. I conclude that the claimant’s work was not salaried hours work.[111]The claimant was also not being paid by reference to the number of hours he worked per week. I conclude that the claimant’s work was not time work.[112]Nor was the claimant being paid by reference to output of any sort. I conclude that the claimant’s work was not output work.[113]The only remaining category of work is the residual category of unmeasured work. This is defined by what it is not, it is any work that is not salaried hours work, time work or output work. As the claimant’s work was not salaried hours work, time work or output work I conclude that the claimant’s work was unmeasured work.[114]I also need to decide whether the hours the claimant spent driving his fellow work colleagues from their accommodation/ s to their respective sites before he attended his assigned site, and then collecting his work colleagues from their respective sites to drive them to their accommodation/ s before returning to his accommodation were hours the claimant spent travelling for the purposes of unmeasured work.[115]I am not bound to follow the interpretation made by the Tribunal in Aslam which would mean that any assessment would be similar to the regulations relating to travelling time when the claimant’s work is time work but for the sake of completeness I have considered whether this is the case or not below.[116]The claimant was required to complete mileage logs for the respondent for each day of the month that he was driving his work colleagues (and then himself) to and from the sites and their accommodation/ s. I saw three examples of these mileage logs for the months of July 2023, September 2023 and October 2023.[117]Secondly, the claimant was not simply driving himself to and from his accommodation to his work site. He was driving his work colleagues to and from their different work sites and accommodation/ s too.[118]Taking these two facts together I conclude that these were hours the claimant spent travelling for the purposes of unmeasured work. The claimant was clearly driving for the purposes of the business of the respondent. He was working.[119]In respect of whether the claimant was merely commuting, in my view the claimant’s situation was different to the situation of the workers in the case of Taylors Service Ltd (dissolved) and anor v Commissioners for HM Revenue and Customs 2024 EAT 102 because in that case the workers were being transported by the respondent to their work on a farm. None of these farm workers were driving each other to different farms before driving to their own assigned farm. These workers were just commuting. It was just that their commute was particularly lengthy.[120]The claimant was not simply commuting to and from his accommodation to his work site. He was sometimes having to travel to and from different accommodations to his own and he was always having to travel to and from different work sites to his own to drop off or collect his fellow work colleagues.[121]I conclude that the claimant was entitled to be paid the national minimum wage rate for these travelling hours. Was the claimant paid the national minimum wage?[122]For the purposes of calculating this I need to define the appropriate pay reference period for this claimant. As the claimant was paid monthly the claimant’s pay reference period is 1 month.[123]I decided that it was sensible to consider firstly whether the claimant was paid the national minimum wage for any pay reference period in 2024 starting with the pay reference period of April 2024 for two reasons.[124]Firstly, the claimant has previously complained to HMRC about not being paid the national minimum wage in respect of the hours that he had worked on site for the respondent in 2022 and more likely than not in 2023 (unfortunately I do not have the exact dates of these complaints). The claimant, however, had not complained to HMRC about the time he had spent driving his work colleagues and himself to and from their work sites and accommodations when he made these complaints.[125]This means that in respect of the hours the claimant worked for the respondent (including his travelling time) he is now not able to bring a complaint to the Tribunal for any pay reference period prior to 2024 because he has already made a complaint to HMRC about not being paid the national minimum wage. I have taken judicial notice of the fact that National Minimum Wage Compliance officers on receipt of a complaint will usually investigate whether the employer has been paying national minimum wage to its workers and will take all relevant information into account (including matters that have not been specifically raised to them).[126]Secondly, if the claimant was in fact paid the national minimum wage for all the pay reference periods between 1 April 2024 and when he presented his complaint to the tribunal on 25 August 2024 then any failure to pay the claimant the national minimum wage prior to 2 April 2024 may, potentially, be out of time.[127]To do this calculation I first need to calculate the claimant’s hours of work in April 2024. For unmeasured time work where there is no daily average agreement this is the actual hours worked by the claimant during the pay reference period.[128]The claimant worked in April 2024 until he was absent on sick leave at the end of April 2024. I do not have the exact date the claimant started his sick leave so I will calculate the working hours for the entirety of April 2024.[129]On the facts the claimant was working on site 50 hours per week and after the summer of 2023 (so therefore in April 2024) he was driving 18 hours per week.[130]Further on the facts, the claimant was working on site 9 hours per day if it was Monday to Friday and 5 hours per day if it was a Saturday. The claimant was also driving three hours per day Monday to Saturday. This means in any week Monday to Friday the claimant was working 12 hours per day and on Saturday he was working 8 hours.[131]April 2024 comprised full four weeks plus two extra days which were a Monday and a Tuesday. There was also a public holiday in April 2024 on which I found above the claimant would not have been working. For unmeasured work absences, including paid holidays, are not included in calculating the hours worked by the claimant.[132]This means in total the claimant worked 284 hours (21 days at 12 hours and 4 days at 8 hours) in the month of April 2024.[133]To calculate the claimant’s pay in the reference period I first need to assess whether the accommodation offset should be added to the claimant’s gross pay.[134]The claimant accepts that the provision of accommodation was a condition of his employment that was agreed to prior to the claimant starting his employment with the respondent. The accommodation was in fact provided to the claimant. I conclude that the accommodation was provided in connection with the claimant's contract of employment.[135]As this accommodation was provided to the claimant free of any charges the accommodation offset rate will need to be added to the claimant’s gross pay for the purposes of calculating his pay for April 2024.[136]For the month of April 2024, the weekly accommodation offset rate was £69.93 and the daily offset rate was £9.99. This means the total accommodation offset rate for April 2024 (comprising 4 weeks and 2 days) is £299.70.[137]I found above that the claimant’s gross pay per calendar month was £1,759.50. This would have been paid in arrears (in accordance with the claimant’s signed written contract of employment) in the next payment reference period to April 2024 (i.e., in May 2024). Pay earned in April 2024 but not received until the next pay reference period (May 2024) is still allocated as pay for April 2024. 138. £1,759.50 plus £299.70 equals £2,059.20.[139]To determine whether the claimant was paid the national minimum wage in April 2024 I need to divide £2,059.20 by the number of hours the claimant worked in April, which were 284 hours to provide the hourly rate.[140]This equals £7.25 per hour. The national minimum wage rate for the claimant in April 2024 was £11.44 I conclude, therefore, that the claimant was not paid the national minimum wage in April 2024.[141]I will next turn to consider the payment reference periods of May 2024, June 2024 and August 2024 up to the date the claimant presented his complaint on 25 August 2024.[142]The claimant was absent on sick leave for most of the period between the end of April 2024 up to 25 August 2024.[143]During this period the claimant worked for a few days in May 2024, I do not know how many days he worked and what he was paid for those days. I, therefore, do not have sufficient information to be able to calculate those days.[144]In June 2024, July 2024 and August 2024 up to the date the claimant presented his complaint to the Tribunal he was absent on sick leave and did not work any hours for the respondent. I conclude that there has not been a failure to pay national minimum wage to the claimant by the respondent for the payment reference periods of June 2024, July 2024 and August 2024.[145]Turning to January 2024, February 2024 and March 2024 I have applied the principles set out above but have created a table below setting out the required information.[146]In respect of the accommodation offset rate the weekly accommodation offset rate and daily accommodation offset rate for the period from 1 April 2023 to 31 March 2024 were £63.70 and £9.10 respectively.[147]Set out below is a table explaining the relevant information for the national minimum wage calculations for January 2024 to March 2024: Payment No. of Gross Accomm. Total pay Hourly Hourly reference hours pay for offset for for the rate paid rate for period worked in PRP PRP PRP to NMW (PRP) the PRP claimant in that PRP January 296 £1759.50£282.10£2041.60£6.90£10.42 2024 (22 days at (31 x (£1759.5 (£2041. (4 weeks 12 hours £9.10) + 60 / 296) plus 3 days) per day £282.10) 1 January and 4 days 2024 was a at 8 hours public per day) holiday February 284 £1759.50£263.90£2023.40£7.12£10.42 2024 (4 (21 days at (29 x (£1759.5 (£2023. weeks and 1 12 hours £9.10) 0 + 40 / 284) day) per day £263.90) and 4 days at 8 hours per day March 2024 280 £1759.50£282.10£2041.60£7.29£10.42 (4 weeks (20 days at (31 x (£1759.5 (£2041. plus 3 days 12 hours £9.10) 0 + 60 / 280) being Friday per day £282.10) 29 March – and 5 days which was a at 8 hours public per day) holiday, Saturday 30 March and Sunday 31 March). Calculating the amount due to the claimant for the respondent’s failure to pay national minimum wage to the claimant[148]A worker who is not paid the national minimum wage will be deemed to be entitled under the contract of employment to the higher of either: 148.1. the difference between what the worker is paid and the national minimum wage, or 148.2. the national minimum wage arrears adjusted to take account of any increase in the national minimum wage rate at the time the arrears are determined by applying the following formula: dividing the amount of the underpayment by the national minimum wage rate applicable at the time of the underpayment (which converts the amount of the underpayment into a notional period of unpaid time) and then multiplying this by the national minimum rate applicable at the time the arrears are determined.[149]The respondent did fail to pay the claimant the national minimum wage from January 2024 to April 2024 inclusive. The table below sets out my calculations for the NMW arrears for the months of January 2024, February 2024, March 2024 and April 2024: Month Difference between No. of hours in month applicable NMW rate and multiplied by difference the hourly rate that was in hourly rates paid January 2024 (10.42 – 6.90) £3.52 (3.52 x 296) £1041.92 February 2024 (10.42 -7.12) £3.30 (3.30x 284) £937.20 March 2024 (10.42 – 7.29) £3.13 (3.13 x 280) £876.40 April 2024 (11.44 – 7.25) £4.19 (4.19 x 284) £1189.96[150]As January 2024, February 2024 and March 2024 have the same NMW rate of £10.42 I will convert the amount of those months underpayments to a notional period of unpaid time together. 151. £1041.92 plus £937.20 plus £876.40 equals £2855.52. Dividing the underpayment by £10.42 will convert £2855.52 into a notional period of unpaid time. This equals 274.04.[152]The current NMW rate for anyone aged over 21 is £12.21. 274.04 multiplied by £12.21 equals £3346.03.[153]For April 2024 dividing £1189.96 by £11.44 will convert the underpayment into a notional period of unpaid time. This equals 104.02. 104.02 multiplied by £12.21 equals £1270.08. 154. £3346.03 plus £1270.08 equals £4616.11.[155]The amount owed to the claimant by the respondent for its failure to pay the claimant the national minimum wage from January 2024 to April 2024 inclusive is therefore £4616.11. Overlap with unlawful deduction from wages award in respect of contractual entitlement to net salary of £1,800 per calendar month.[156]The amount that is owed to the claimant for the national minimum wage overlaps with the unlawful deduction from wages award made above in respect of the respondent not paying net salary of £1,800 per calendar month for the period from January 2024 to April 2024 inclusive.[157]I calculated above that the gross amount that was deducted per month from the claimant’s salary was £375.[158]For four months the total amount awarded for this deduction is £1,500 (£375 x 4).[159]To ensure that there is no overlap between the award for failure to pay national minimum wage and the unlawful deduction from wages in respect of the claimant’s salary I need to subtract £1,500 from £4616.11. This equals £3116.11.[160]I therefore award the claimant £3116.11 for unlawful deductions from wages for the respondent’s failure to pay the claimant the national minimum wage between January 2024 and April 2024 (inclusive).[161]The total amount awarded to the claimant for unauthorised deductions from wages is £19,737.05. Failure to comply with section 1 of ERA[162]The claimant has succeeded in his claim for unlawful deductions from wages. An award of additional pay under section 38 of the Employment Act 2002 for failure to provide a written statement of employment particulars is, therefore, possible.[163]The claimant was entitled under section 1 of the ERA to be provided with a written statement of his employment by not later than 2 months after the start of his employment. The claimant was given a written contract of employment that both the claimant and the respondent signed at the start of his employment with the respondent.[164]I conclude that this written contract of employment only partially complied with section 1 ERA. Although it specified a start date of employment it does not confirm that this is the date that the claimant’s continuous employment began with the respondent. There is no confirmation that the claimant would not be expected to work outside the United Kingdom. It does not specify what days of the week the claimant was required to work. It does not specify the scale or rate of remuneration. Although it has included a clause about reporting sick pay it has not explained the claimant’s sick pay entitlement. It does not specify the other benefits that had been agreed between the claimant and the respondent (i.e. providing accommodation, providing food and the four paid trips to Portugal each year). There is no term confirming the position on collective agreements (including confirming that there are none). Finally, the notice of termination clause is not specific enough about what notice the respondent should give to the claimant to terminate his contract of employment.[165]The respondent is not contesting the claim and has not put forward any evidence of exceptional circumstances which would make it unjust or inequitable to order them to pay the claimant an additional amount for this failure, in accordance with section 38 of the Employment Act 2002. I must, therefore, award the claimant an additional two week’s pay and may, if I consider it just and equitable in all the circumstances, order the employer to pay an additional four weeks’ pay.[166]The written contract of employment given to the claimant at the start of his employment omitted key information as specified above. Not including the scale or rate of remuneration is a major omission.[167]I conclude that it is just and equitable to award the claimant an additional four week’s pay.[168]As the respondent did not pay the claimant national minimum wage in my view I need to calculate the average pay of the claimant for the 12 weeks preceding week commencing 28 April 2024. The reason why I have chosen the 12 weeks preceding this particular week is because the claimant was absent on sick leave from the end of April 2024 and did not work a full week after the week commencing 21 April 2024. As the claimant was paid monthly the last day of the week for the purposes of calculating a week’s pay is Saturday.[169]I have set out in the table below the following information, the particular week, the number of hours the claimant worked that week, the applicable national minimum wage rate for that week and the pay for that week: Week Hours worked NMW rate Pay for that week commencing 21 April 2024 68 11.44 £777.9214 April 2024 68 11.44 £777.927 April 2024 68 11.44 £777.9231 March 2024 56 11.44 £640.6424 March 2024 56 10.42 £583.5217 March 2024 68 10.42 £708.5610 March 2024 68 10.42 £708.563 March 2024 68 10.42 £708.5625 February 2024 68 10.42 £708.5618 February 2024 68 10.42 £708.5611 February 2024 68 10.42 £708.564 February 2024 68 10.42 £708.56[170]The total of these twelve weeks is £9226.40. £9226.40 divided by twelve equals £768.86.[171]The statutory cap of £700 that was applicable when the claimant presented his complaint to the Tribunal therefore needs to be applied to the gross weeks’ pay. 172. £700 multiplied by four equals £2800.[173]I award the claimant an additional four week’s pay, i.e., 4 x £700 = £2800.