Mrs J Haynes v Elev8 Investments Manchester Ltd: 6009769/2025
EMPLOYMENT TRIBUNALS
Case No 6009769/2025
Between
Mrs J HaynesClaimantElev8 Investments Manchester LimitedRespondent
Before
Employment Judge AndersonIn person for claimantDate 19 May 2026
JUDGMENT
[1]The Respondent unlawfully deducted the sum of £1004.80 from the Claimant’s January 2025 pay.[2]By consent, it is agreed that the Claimant is owed £493.73 in respect of outstanding holiday pay. It is recorded that the Respondent has already sent a cheque for this sum which the Claimant says she did not receive. The Respondent will stop that cheque to avoid any risk of double recovery and make payment as directed above.[3]The Claimant did not have a written set of terms and conditions that complied with s.1 Employment Rights Act 1996. Under s.38 Employment Act 2002, the Claimant is entitled to two weeks pay calculated as 183.04 x 2 = £366.08[4]As a result of the above, the Respondent is ordered to pay to the Claimant the total sum of £1864.61[5]All other claims of unlawful deduction from wages are not well founded and are dismissed.[6]The claim of constructive unfair dismissal is not well founded and is dismissed. Case No. 6009769/2025
REASONS
[1]The Claimant, Mrs J Haynes brings proceedings for constructive unfair dismissal, unlawful deduction from wages and unpaid holiday pay against her former employer Elev8 Investments Manchester Limited. Procedural Matters[2]The hearing took place by way of CVP over a period of two days. The Claimant represented herself. The Respondent was represented by its Director, Mr Rashid. Case No. 6009769/2025 2[3]At the outset of the hearing, the claims were identified as were the issues to be determined.[4]The Claimant called herself to give evidence and also Ms Bolton. The Respondent called Mr Rashid, Mrs Rashid and their daughter Ms Rashid. All of these witnesses provided a witness statement and gave evidence via oath or affirmation. All were cross-examined.[5]All witnesses gave evidence remotely. Each witness gave evidence in a room on their own. Mr Rashid was able to observe from a different device when Mrs Rashid and Ms Rashid gave evidence in turn.[6]Mrs Rashid’s second language is English. At no time has the Tribunal previously been told that an interpreter was required. I therefore took care to ensure that Mrs Rashid understood the proceedings and each question that was being asked of her. I ensured that simple language was used, matters were dealt with slowly and on occasion points were rephrased.[7]Ms Rashid is the daughter of Mr and Mrs Rashid. She is 17 years old and is shortly turning 18. Before she gave her evidence, I ensured that she was a competent witness. I discussed the need to tell the truth and the difference between truth and a lie. I was satisfied that she was a competent witness.[8]I also explained to everyone that as a child Ms Rashid was in effect a protected party and so I expected her to be addressed in straightforward terms and also emphasised to the Claimant that the witness was a child. The Claimant said that she understood and said that she only had one question. The Claimant then proceeded without any lead in to accuse the witness of being biased. It was far more blunt and aggressive than any question that had been asked of Mr Rashid. I did not permit this line of questioning in this fashion. It was unnecessary. What needed to be discussed was what was said on the 31st December. The Claimant did not have any other questions. I asked Ms Rashid some questions of my own volition to clarify what she heard regarding the relevant incident.[9]The Respondent also supplied a signed witness statement from Karen Hacking. This witness did not attend the hearing and as a result, I placed limited weight on this evidence as the Claimant did not have the opportunity to challenge or test this evidence.
The Issues
[10]The issues were identified as follows:[11]Constructive Unfair Dismissal(1) Did the Respondent do the following things: Case No. 6009769/2025 3 (a) Unilaterally varying the Claimant’s contract of employment from 28 hours to 8 hours on the 31st December 2024 (b) Requiring the Claimant to return to work without a contract.(2) Did that breach the implied term of trust and confidence? Taking account of the actions or omissions alleged in the previous paragraph, individually and cumulatively, the Tribunal will need to decide: (a) whether the Respondent had reasonable and proper cause for those actions or omissions, and if not (b) whether the Respondent behaved in a way that when viewed objectively was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent.(3) Did that breach an express term of the Claimant’s verbal contract of employment relating to hours?(4) Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the Claimant was entitled to treat the contract as being at an end.(5) Was the fundamental breach of contract a reason for the Claimant’s resignation.(6) Did the Claimant affirm the contract before resigning, by delay or otherwise? The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach.[12]Remedy for Unfair Dismissal. If there is a compensatory award, how much should it be? The Tribunal will decide:a. What financial losses has the dismissal caused the Claimant?b. Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?c. If not, for what period of loss should the Claimant be compensated?d. Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? Case No. 6009769/2025 4e. If so, should the Claimant’s compensation be reduced? By how much?f. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?g. Did the Respondent or the Claimant unreasonably fail to comply with it?h. If so, is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?i. If the Claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?j. If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion?k. Does the statutory cap of fifty-two weeks’ pay apply?l. What basic award is payable to the Claimant, if any?m. Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent?[13]Unlawful Deduction from Wages/Holiday Paya. Were the wages paid to the Claimant on [date] less than the wages s/he should have been paid?b. Was any deduction required or authorised by statute?c. Was any deduction required or authorised by a written term of the contract?d. Did the Claimant have a copy of the contract or written notice of the contract term before the deduction was made?e. Did the Claimant agree in writing to the deduction before it was made?f. How much is the Claimant owed?[14]Section 38 Employment Act 2002a. When these proceedings were begun, was the Respondent in breach of its duty to give the Claimant a written statement of employment particulars or of a change to those particulars?b. 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 must award two weeks’ pay and may award four weeks’ pay.c. Would it be just and equitable to award four weeks’ pay? Case No. 6009769/2025 5
Findings of Fact
[15]The Claimant commenced employment at Holt's fish and chip shop in February 2014. She describes her role as that of shop assistant.[16]For the last five or six years the Claimant has consistently worked 28 hours per week.[17]On the 24th December 2024, the Claimant asked Mr Rashid if she could reduce her hours from 28 hours to 24 hours per week with effect from January.[18]On the 31st December 2024 a conversation happened between Mr Rashid and the Claimant. This was not a formal meeting. Mrs Rashid was present and Ms Rashid was in the vicinity.[19]None of the witnesses have given granular detail as to what was said at this discussion, by whom and in what order. Mr Rashid says that the Claimant agreed to reduce her hours to 8 hours per week. The Claimant says that she agreed no such thing.[20]On the 2nd January 2025, the Claimant spoke with ACAS seeking advice. The fact that the Claimant had spoken to ACAS immediately, bearing in mind that the 1st January 2025 was a bank holiday, is indicative of her dissatisfaction at having her hours reduced.[21]The Claimant wrote to Mr Rashid objecting to the variation in her hours.[22]In response, Mr Rashid wrote to the Claimant asking her to attend a meeting on the 7th of January 2025. The Claimant refused to attend the meeting. Before me, the evidence was that the Claimant wanted someone to come with her at any meeting.[23]On the 11th of January 2025, Mr Rashid wrote to the Claimant referring back to her wish to reduce her hours on the 24th December 2024 and stating that it was mutually agreed on 31st of December that the Claimant would work 8 hours going forward.[24]On the 27th of January 2025 the Claimant met with Mr Rashid. Mrs Rashid was also present. The Claimant was accompanied by her friend from church Miss Bolton.[25]Again whilst all of the witnesses have referred to the meeting and broad evidence as to what was said, no witness has been able to give me granular detail of what was said by whom specifically. I do not consider the Respondent’s minutes to be a particularly reliable document. These minutes have not been Case No. 6009769/2025 6 approved by the Claimant and were provided as part of the late bundle. It is my role to make findings on the balance probabilities as to what was more likely than not to have been said.[26]The Respondent’s witnesses and the Claimant and her witness disagree on the context of the initial part of the discussion at this meeting. Each side places different emphasis on what is said to have been discussed. The Claimant says that the Respondent was discussing financial difficulties and the reduced work post Christmas whereas the Respondents case is that no such matters were discussed at all and what was being discussed is the number of hours that could be worked in a week.[27]In her oral evidence Miss Bolton referred to this as a negotiation. The phrase negotiation also appears in the Claimants written evidence regarding her approach to the number of hours that she wanted to work for the Respondent. I take the view that there was clear bargaining between the Claimant and the Respondent taking place in this meeting. It is correct to call this a negotiation.[28]What is clear is that by the end of the meeting, there was an express agreement between the parties that the Claimant’s hours of work would vary to 16 hours per week.[29]Immediately following this meeting on the 27th January 2025, correspondence was sent to the Claimant by the same date. That correspondence referred to a “change to the terms and conditions of your employment”. It also referred back to the meeting and referred to the contractual working hours being 16 hours per week, effective from the 3rd of February 2025. The Claimant did receive this correspondence.[30]On the 30th January 2025 Mr Rashid wrote a letter and posted to the Claimant a contract of employment. This contained an express clause for 16 hours per week. The Respondent has provided proof of postage to show that this was sent to the Claimant. The Claimant denies ever having received this.[31]Neither the Claimant nor the Respondent referred in subsequent correspondence to the contract having been sent or not received. Whilst I accept that the Claimant would not ordinarily be expected to prove a negative by referring to a document she had not received, the Claimant’s case is that she resigned, in part, due to the absence of written contractual terms notwithstanding that she had been told that such terms would be provided. On the evidence before me, the Respondent did send the contract.[32]Both parties have referred to their subsequent negotiations. In so far as these documents may be labelled without prejudice or in fact be without prejudice, both parties have adopted the position of expressly consenting that they be admitted into evidence. Case No. 6009769/2025 7[33]The position with regard to what was communicated in ACAS early conciliation is different. Neither party has consented to the words they used to ACAS being admissible. S.18(7) Employment Tribunals Act 1996 creates statutory confidentiality in respect of ACAS communications. Such communications are not admissible without the consent of the party making the statement.[34]On the 28th of February 2025 the Claimant wrote to Mr Rashid referring to the possibility of bringing employment tribunal proceedings and the fact that an ACAS certificate had been issued She proposed an amount in full and final settlement Of £2750.[35]I note that this correspondence includes the statement: “if I consider the change in my working hours to be only 16 hours per week from 3rd of February 2025…”. I do not consider that to be an accurate reflection of the position. The evidence, including that of Miss Bolton, called on behalf of the Claimant, supports the conclusion that the Claimant had already agreed to work 16 hours per week at the meeting on 27th January 2025. Whilst there may have been some lack of clarity regarding the precise working pattern, including the position on Tuesday shifts, I am satisfied that there was agreement to the variation to 16 hours. Further, the Respondent had recorded that agreement in writing without eliciting any contemporaneous objection of the kind raised following the events of 31 December 2024.[36]The Claimant wrote to Mr Rashid on the 10th of March 2025. The proposed settlement figure increased to the sum of £7000[37]Mr Rashid wrote back to the Claimant on the 12th of March 2025 rejecting what the Claimant had said.[38]On the 20th of March 2025 the Claimant wrote to Mr Rashid resigning from her employment. She referred to the reduction in weekly working hours from 24 to 8 without her agreement. The correspondence also refers to being required to take holiday until 1st of April 2025 without her agreement.[39]The draft contract had been sent out did not include all relevant matters as required by Section 1 of the Employment Rights Act 1996. For example the contract referred to a start date of February 2025 and did not acknowledge the Claimants continuous service. It also did not refer to other basic requirements for example identifying the disciplinary and grievance policies or the location of them.[40]In the written witness evidence of the Respondents witnesses, there have been some broad, uncorroborated references to conduct issues. I do not consider these points to be material to the case that has been put before me today. This is a case about reduction in hours and what then follows. It does not assist the Case No. 6009769/2025 8 Respondent to have raised these vague points in this way. Whilst the parties have clearly fallen out, at no time has it been part of the Respondent’s case that any step which it took was in some way related to the Claimant’s conduct. Nothing raised has sufficient substance and in any event I consider it irrelevant to the issues before me.
The Law
[41]The burden of proof is on the Claimant to prove that she was constructively dismissed. The Claimant relies upon two terms i) the express term in relation to the hours she works in a week and ii) the implied term of trust and confidence.[42]In respect of the express term regarding hours, the Claimant must prove the existence of the term and the breach of that term. It must then be shown that the breach of that term was a fundamental breach of contract.[43]When faced with a unilateral variation by an employer, the options available to an employee are as follows: i) To resign and claim constructive unfair dismissal, subject to qualifying service and showing that the breach was repudiatory; ii) To waive any repudiatory breach/affirm the contract and agree to work under the new terms; iii) Depending on the nature of the change, to refuse to work under the new terms and (in terms) dare the employer to dismiss; iv) To “stand and sue” by working under protest but bringing proceedings for breach of contract and/or any shortfall in wages (the classic case being Rigby v. Ferodo Ltd 1988 ICR 29 HL); and v) To work under the new contract but assert dismissal from the old contract, which – subject again to qualifying service – can form the basis for a complaint of unfair dismissal.[44]The above is derived from para 30 of Jackson v The University Hospitals of North Midlands NHS Trust [2023] EAT 102. Although this case relates to a Hogg v Dover college situation, the relevant paragraph references the options open to an employee faced with a unilateral variation.[45]In respect of the implied term of trust and confidence the law implies such a term into the contract of employment. Without such a term the contract could not exist. It is a fundamental term. It is for the Claimant to prove that without reasonable and proper cause, the Respondent acted in a manner that was calculated or likely to breach the implied term of trust and confidence.[46]A fundamental breach, once it has occurred, cannot be subsequently ‘cured: Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121. Case No. 6009769/2025 9[47]The concept of ‘cure’ however is distinct from the position regarding the separate concept of affirmation. Affirmation is where a party agrees to be continue to be bound by the terms of the contract. Affirmation may be express or implied. Affirmation can include the innocent party calling on the guilty party for further performance of the contract or the innocent party acting in a way that it only consistent with the continued existence of the contract.[48]Where there has been affirmation, this does not prevent earlier breaches being relied upon to establish a constructive dismissal where there is a subsequent valid final straw: Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 at para 55 per Underhill LJ.
Conclusions
[49]Firstly, with regard to the contractual position, I find that prior to January, the Claimant had in place a verbal contract of employment which included an express term that the Claimant was contracted to work 28 hours per week.[50]I make this finding as to the contractual position for a number of reasons. The situation with the Claimant’s hours had persisted for a period of at least five years. In that period, the Claimant was expected to work 28 hours in a week and the Respondent was obliged to provide the Claimant with 28 hours of work in a week. Neither the Claimant or the Respondent could alter this without varying the contract. In this period, if the Respondent had failed to pay the Claimant 28 hours in a week, the Claimant would be able to bring a wages claim for not being paid her full wage.[51]The Claimant’s evidence was consistent on this point and her actions at the time were consistent with this being the position. She worked consistent days and a consistent shift pattern. In contrast, the position of the Respondent appears to be based on no more than an assertion that a zero hours contract existed. No evidential basis has been put forward for this contention, either in the way of direct evidence or corroborative evidence. The height of the reasoning was a) an assertion that the previous owner of the business told Mr Rashid of this fact back in 2023 and b) because there is nothing in writing then that must be the case. I accept the Claimant’s evidence on this point and I do not accept the position of the Respondent. Whilst the Respondent refers to a zero hours contract the fact of the Claimant working 28 hours or that there was a shift pattern was not evidentially disputed by the Respondent. The bare assertion of a zero hours contract in these circumstances does not reflect either the reality of the situation or the parties genuine understanding of what happens week to week.[52]With this being the contractual position, it follows that any attempt to vary this position unilaterally is a breach of contract. Case No. 6009769/2025 10[53]In seeking to work 24 hours, the Claimant was seeking to vary the contractual position by consent. The fact that the Claimant was seeking to do this by agreement rather than simply not turning up to work is further supportive of the conclusion that there was an express agreement as to the hours that she worked.[54]The Respondent should not have had this conversation with the Claimant at the end of a shift on New Year's Eve without prior notice.[55]Mr Rashid says that there is no law which prevents meetings occurring on New Year's Eve. That may be a true statement but it belies the general conduct of the Respondent on this point. In no way was this a “formal” meeting as described by the Respondent.[56]In addition, the Respondent has been inconsistent as to the contractual position regarding the Claimant. Throughout this hearing, it appeared that the Respondent, through Mr Rashid would adopt whichever position was considered to be most advantageous at that immediate point in time. For example, the Respondent referred to and maintained that the Claimant was on a zero hours contract but then would also refer to the Claimant being under an obligation to give a months notice to reduce her hours. It was also suggested that the Claimant was under a contractual obligation to give notice to end her employment.[57]The contractual position was that the Claimant had a verbal contract which was to work for 28 hours per week. The Claimant had worked 28 hours per week for an excess of five years. This was an established contractual position.[58]The Claimant’s wish was to reduce her hours from 28 to 24. The reason for seeking this reduction was medical reasons. The Claimant identified the Tuesday shift in particular because this shift was 4 hours long whereas shifts on other days were 8 hours long. From the Claimant’s perspective, this was the easiest shift to reduce or drop because it would result in an additional day being free whilst losing the least number of hours.[59]The Claimant did not suggest working 8 hours per week. I find that the reference to 8 hours originated from Mr Rashid. I do not accept that the Claimant agreed to such a significant reduction in hours on the basis of a single, informal conversation. It is possible that Mr Rashid proceeded on the basis that he could offer reduced hours, and that this was permissible given his understanding of the contractual position. However, any misunderstanding or lack of proper communication in this regard is attributable to the Respondent. I find as a clear fact that at no time did the Claimant consent to a reduction from 28 to 8 hours per week. Case No. 6009769/2025 11[60]The Claimant’s objection on the 2nd of January was near immediate. I find that to be persuasive in the findings that I make as to the fact the Claimant was not happy, was objecting to what was being proposed and had at no point contractually agreed to work 8 hours.[61]In response to the Claimant’s objection, Mr Rashid invites the Claimant to attend a meeting on the 7th January 2025. The Claimant refuses to attend this meeting.[62]The evidence was that the Claimant had sought support from her Church and the Claimant felt unable to attend a meeting with Mr Rashid without support.[63]Pausing to note the situation as it was at this point in time, it is clear that in a short space of time, matters have escalated significantly. It is clear that Mr Rashid’s suggestion that the Claimant had agreed to a reduction to 8 hours had caused the Claimant to believe that she could not face a meeting with Mr Rashid alone. At the same time, the company, through Mr Rashid, is the Claimant’s employer and either the relationship is ending or an employee and employer need to be able to meet with each other.[64]The fact that the law only prescribes a limited right to be accompanied by a work colleague or Union representative at a grievance meeting as per the Employment Relations Act 1999 is relevant background. But this was a small business, with members of the same family in it and the Claimant was not a union member. The fact that she was seeking support from elsewhere, in the form of a support group at the Church isn’t that surprising.[65]At the same time the Claimant was employed by the Respondent. At this point in time this dispute has suddenly escalated quickly and it has reached a situation whereby the Claimant is not prepared to meet with her employer. The Tribunal also heard oral evidence from Miss Bolton that some people in her church gave her advice to this effect as well.[66]I accept the evidence of Miss Bolton which describes the meeting that took place between Mr Rashid and the Claimant at which she was present along with Mrs Rashid as a meeting at which there was a negotiation.[67]At this meeting the Claimant expressly agreed to work 16 hours per week. This was a very different meeting to the meeting that took place on the 31st of December 2024. The Claimant was accompanied, she was bargaining and negotiating and an express agreement was reached which both parties intended of being capable of being relied upon. The Claimant chose to accept 16 hours rather than resign in relation to the previous unilateral variation. Case No. 6009769/2025 12[68]There has been no suggestion in the evidence that the Claimant was forced to accept these 16 hours. This was a genuine negotiation. The evidence of Miss Bolton, who was called by the Claimant is corroborative of that.[69]I considered the express agreement of the Claimant to a variation in her hours to be an express affirmation of the contract of employment by the Claimant.[70]In expressly agreeing to new terms, the Claimant affirmed the existence of the contract between the parties and its terms. The Claimant is the innocent party and was aware of the existence of the previous breach at this point in time. Having been aware of the breach, the Claimant has the choice to terminate the contract, continue to work for a limited period under protest. By expressly agreeing to the new hours and agreeing to continue to work, the Claimant affirmed the contract.[71]The number of hours to be worked was fundamental to the contract. Such a finding is consistent with the findings made above regarding the seriousness of the unilateral variation. This was not a minor term, the agreement to which may not indicate an intention affirm the existence of the contract. This was fundamental and it was the intention of the parties for the Claimant to continue to be employed on these terms.[72]The Claimant was not obliged to agree to 16 hours. She was aware that she could say no. She was aware that she could resign. She was not looking to continue to work under protest afterwards. This was a Claimant agreeing that the contract of employment was in place and making an express agreement with the Respondent as to the number of hours. There was an intention to create legal relations in that both parties agreed for the Claimant to have 16 contractual hours per week. There was an offer of 16 hours and an acceptance of 16 hours. The Claimant would remain in employment.[73]As to what then happened it is clear that the Respondent took positive steps to progress that agreement. The Respondent has proven that written terms and conditions were sent out to the Claimant.[74]Before me, the Claimant relies upon not being sent a contract as being essentially the point that causes her resignation. The Claimant does not refer to this being the cause of her resignation at the time.[75]I also do not accept the contention made by the Claimant with her resignation letter that “you required me to take holiday until 1st of April 2025 again without my agreement”. There was a prior agreement for the Claimant to be on holiday and this was welcomed by the Claimant because of her medical position at the time. In any event, it was the Claimant who had previously raised the possibility of taking untaken leave with the Respondent. The fact that she was taking it does not amount to a breach of the implied term of trust and confidence. Case No. 6009769/2025 13[76]It is settled law that constructive dismissal is concerned with the actions of the Respondent and not the actions of the Claimant. Post the meeting at which the Claimant agrees to work 16 hours, the Claimant has not proven any act or omission by the Respondent that would amount to a breach of contract, either of an express term or of the implied term of trust and confidence, including assessing the position cumulatively and in accordance with para 55 of Kaur (above).[77]Therefore to summarise:a. In altering the Claimant’s hours on the 31st December 2024, the Respondent was in breach of an express term of the Claimant’s contract of employment. The move from 28 to 8 hours was a unilateral variation.b. This breach was fundamental. It was a significant reduction in hours.c. The Claimant continued to work under protest until her meeting with Mr and Mrs Rashid, accompanied by Ms Bolton.d. By agreeing to work 16 hours, the Claimant affirmed the contract.e. No further breaches of the express term occur after the affirmation occurs. There is no last straw, even applying the threshold in Omilaju v Waltham Forest London Borough Council [2004] EWCA Civ 1493 that any breach need not be significant so as to amount to a last straw.[78]In relation to the implied term of trust and confidence, the position is as follows:a. In unilaterally varying the Claimant’s hours by reducing them from 28 to 8 hours, the Respondent was acting without reasonable and proper cause and that this was likely to breach the implied term of trust and confidence.b. The Claimant affirmed this breach by agreeing to work 16 hours.c. No further breaches of the implied term of trust and confidence occur following the affirmation of the breach. There is no last straw.[79]In respect of the trust and confidence case, the Claimant has not proven other elements that she relies upon. Constructive dismissal is about the actions of the employer and not the actions of the employee. Following the agreement to 16 hours, the Respondent did send the Claimant a written agreement to that effect, albeit one that did not meet the minimum requirements of s.1 ERA 1996, although it did accurately reflect the agreed number of hours. The Claimant relies upon not being sent these terms, but the Respondent has proven that they were sent.[80]Accordingly, the claim for constructive unfair dismissal does not succeed and is dismissed. Case No. 6009769/2025 14[81]I record that had the Claimant succeeded in her claim for constructive dismissal, I have had very little evidence placed before me as to her financial situation post resignation. The Claimant gave contradictory answers as to her medical position, her ability to work and how much and the work that she was available for pending an operation. No documentary evidence was placed before me. Wages[82]Having made the findings that I have, it follows that the Claimant was being paid less than her contractual entitlement up to the point at which a contractual variation to 16 hours per week was agreed between the parties.[83]This amounts to a deduction as she was being paid less than she was otherwise contractually entitled to. There is no statutory basis, prior written agreement or contractual term would permit this deduction[84]Whilst the Respondent has disputed liability it has not disputed the Claimant’s mathematical calculation of £1004.80 being the sum deducted from her January pay. I therefore award the Claimant this figure.[85]I record that no issue regarding time limits arise. With time running from the date of the deduction, taking into account any ACAS early conciliation period, the claim was submitted within the primary time limit. Holiday Pay[86]Following the end of the Claimant’s employment the Respondent sent a cheque to the Claimant for the sum of £493.73. This is the correct figure in respect of outstanding holiday pay. The Respondent has proven that it sent this cheque. The Claimant has said that she did not receive this cheque. I find that the Respondent did send it. The cheque has not been cashed.[87]It is not in dispute that the Claimant is entitled to this money. Therefore, because the Claimant has yet to receive this money, I order it to be paid but will record that the Respondent is permitted to stop the first cheque so as to avoid any risk of double recovery. S.38 Employment Act 2002[88]Having succeeded in her wages claim I consider it appropriate to consider making an award to the Claimant under the uplift provisions in section 38 of the Employment Act 2002. The issue of the lack of written documentation was fully ventilated during the hearing and the parties also addressed the issue in submissions. Case No. 6009769/2025 15[89]A claim for wages is listed within schedule 5 of the Employment Act 2002. At the relevant time the Claimant did not have a set of terms and conditions that complied with Section 1 of the Employment Rights Act 1996.[90]I accept that the Respondent had sought to send the Claimant a set of written terms and conditions towards the end of her employment. However, that document did not contain all of the necessary information as required under Section 1 of the Employment Rights Act 1996. Mandatory information such as the position regarding continuous employment was not included.[91]The starting point is two weeks pay. I am permitted to not make any award if I consider there are exceptional circumstances. I do not find that there are exceptional circumstances. The Claimant transferred into the Respondent in 2023. The fact that the previous employer did not provide a written set of terms and conditions is not a mitigating factor given the time that subsequently expired. The Respondent had a clear legal obligation, the obligation is not onerous and it also relates to a matter of substance that in part related to the dispute before the Tribunal.[92]I do not consider an award of four weeks pay would be appropriate. I am permitted to increase the award from two weeks to up to four weeks if it is just and equitable to do so. I do not consider it is just and equitable to do so. This is a small employer and there was at least an attempt to provide something in writing, albeit a belated one that was not adequate.[93]I therefore award two weeks pay based upon the entitlement being 16 hours per week at £11.44. This totals £366.08.