Mr Posa v Jashoda Ltd: 6010808/2025
JUDGMENT
[1]The respondent made an unauthorised deduction of wages by failing to pay the claimant his full wages for the period between 13 November 2024 and 12 January 2025, and is ordered to pay the claimant the sum of £2,078.32 gross.[2]The respondent made an unauthorised deduction of wages by failing to pay him his share of the service charge received for the period between 13 November 2024 and 12 January 2025, and is ordered to pay the claimant the sum of £867.44 gross.[3]The respondent failed to provide the claimant with an itemised pay statement, and is ordered to pay the claimant the sum of £479.61 gross.REASONS
[1]Mr Posa was employed by the respondent as a bar manager at “The Ravensbury” restaurant owned by the respondent. The claim is about underpayment of wages, failure to pay tips / service charge and failure to provide itemised pay slips.THE HEARING
[2]The hearing was conducted by CVP. Mr Posa represented himself and the respondent was represented by Mr Doshi.[3]During the hearing I was referred to the following relevant documents:2.1 From the Claimant: a hearing bundle of 43 pages (the references to page numbers in this judgment are to the pages in this bundle) and a Schedule of loss (2pg).2.2 From the respondent: an e-mail dated 2 October 2025 attaching a staff handbook, contract and covering letter dated 23 October 2024, and WhatsApp messages (4 pages).2.3 Respondent’s skeleton argument. I informed the parties that I had access to the tribunal file which included the pleadings and correspondence with the parties. I also provided the parties with the Department of Business and Trade “Code of Practice on Fair and Transparent Distribution of Tips”.[4]Mr Posa gave evidence on behalf of the claimant, and Mr Dhaval Patel (Director of Jashoda Limited) gave evidence on behalf of the respondent. Mr Posa had provided a witness statement which he confirmed. Since Mr Patel did not have a witness statement he relied on his response in the Respondent Form. I asked both Mr Posa and Mr D Patel questions to adduce their evidence in chief. They were then cross-examined by the other party. On completion of the evidence both parties made short submissions. Judgment was reserved.PRELIMINARY MATTERS
[5]As a preliminary issue I found that the tribunal service had wrongly recorded that the respondent had failed to submit the response form in time (i.e. by 28 April 2025). Mr Patel gave evidence under oath and provided photographic evidence which confirmed that he had a delivered the response form to London South Employment Tribunal on 28 April 2025 at 3:15pm.[6]I asked both parties if they were in a position to proceed with the hearing that day and they both confirmed that they were, having provided all the necessary documentation to the tribunal in advance of the hearing. The respondent confirmed that their witness was Mr D Patel.[7]Since some of the documents provided by the parties had not been provided to each other I adjourned to enable the parties to exchange and read each other’s documents. I again asked both parties if they were in a position to proceed with the hearing that day and they both confirmed that they were.[8]With the parties consent, the 2 hour hearing was extended initially to 1pm to enable the parties time to prepare and then to 4pm in order to complete the evidence and submissions. RESPONDENT’S MID-HEARING APPLICATION TO ADJOURN[9]One of the issues in dispute was what hours Mr Posa actually worked. Mr Posa was relying on a rota as evidence in support of his case. The respondent submitted that the rota was not an accurate record, stating that staff shifts were often cancelled due to insufficient bookings and therefore staff worked considerably less than indicated on the rota. Following completion of Mr Posa’s evidence the respondent applied for an adjournment in order to obtain timesheets which they submitted would show Mr Posa’s actual hours of work. The respondent informed me that it operated a digital clock in / clock out system, which was used to generate pay slips for staff on zero-hour contracts. The respondent was unable to obtain this information during the hearing because it was held in their Indian offices (which were current closed due to the time difference). The application to adjourn was opposed by Mr Posa who said he was never asked to clock in / clock out and therefore there will be no time sheets recording his hours of work.[10]In considering this application I had regard to the overriding objective to deal with cases fairly and justly. I decided not to grant the respondent’s application to adjourn. This was because:10.1 The respondent was unable to positively say that they had timesheets for Mr Posa. Mr Patel did not work with Mr Posa and could give no direct evidence that Mr Posa was required to clock in / clock out.10.2 The respondent accepted that Mr Posa had not received any pay slips during his employment. This fact supported Mr Posa’s submission that in fact he was not required to clock him / clock out. Had he done so it is likely that payslips would have been generated. I therefore concluded that it was unlikely that the respondents did have timesheets for him.10.3 The application was made on completion of Mr Posa’s evidence. It would mean the hearing going part-heard and significantly delay the conclusion of these proceedings (given the current pressure on listings in London South Employment Tribunal).10.4 Mr Posa submitted that if the respondent provided time sheets then he would dispute their authenticity and require the respondent to disclose CCTV evidence and other evidence of his attendance. This would further delay these proceedings and add to the expense (in time and money) for the parties.10.5 It would not be proportionate to the issues to be determined which concerned a relatively low value and simple money claim. The respondent submitted that if the Tribunal found Mr Posa’s hours of work on the basis of what was recorded on the rota, it would have wider implications since other hourly paid staff may submit claims on this basis. I did not agree, because according to the respondent normally it provides staff with pay slips which are based on the hours recorded by the clock in / clock out system. This would ordinarily be a more accurate record of the hours worked than a rota, since the pay slips would show the actual hours worked. The hours recorded in the rota is only relevant in Mr Posa’s case because the respondent had not provided him with any pay slips.10.6 Both parties had provided documents for this hearing in relation to Mr Posa’s hours of work, and in my view these were sufficient to determine the matter. CLAIMS / ISSUES[11]The claims and issues were discussed with the parties at the commencement of the hearing and were identified as follows:11.1 A complaint for unlawful deduction of wages arising from the underpayment of wages between 13 November 2024 and 12 January 2025.11.2 A complaint for unlawful deduction of raises wages arising from the failure to pay him his share of the service charge received for the period between 13 November 2024 and 12 January 2025.11.3 A complaint for failure to provide itemised pay statements. This was not disputed by the respondent.[12]Mr Posa was informed that he could not bring a complaint for holiday pay without making an application to amend since this was not a claim that he had presented in his claim form. Mr Posa confirmed that he was not pursuing this complaint.[13]Mr Posa was also informed that he could not seek aggravated damages or loss of earnings following the termination of his contract since these were not remedies available to him arising out of a claim for unlawful deduction of wages. FINDINGS OF FACTS[14]I have only made findings of fact in relation to those matters relevant to the issues to be determined. Where there were facts in dispute I have made findings on the balance of probabilities. I confirm that I have taken into account all the documentation and evidence before us and if something is not specifically mentioned that does not mean that I have not considered it as part of my deliberations. The restaurant[15]Jashoda Limited (the respondent) is a business that owns “The Ravensbury”, a restaurant and bar with a private club available for hire.[16]The respondent’s witness, Mr D Patel, was the Director of Jashoda Limited. He did not work at the restaurant during the period that Mr Posa was employed, although he would visit for about an hour every week.[17]The General Manager of “The Ravensbury” was Mr Nilay Patel and the Restaurant Manager was Mr Nimesh Karka, both employed on full-time contracts. There were approximately 13 staff employed on zero-hour contracts with hours of work allocated weekly by the rota. There was a clock in /, clock out system that recorded their hours of work and this information was used to generate their pay slips.[18]The restaurant’s opening hours at the relevant time were as follows: Monday 5:30pm until 9:30pm; Tuesday, Wednesday and Thursday 12 noon to 3pm and 5:30pm to 9:30pm; Friday and Saturday 12 noon to 3pm, 5:30pm to 10:30pm; and Sunday 12 noon to 3pm, 5:30pm to 9:30pm. The opening hours of the club would depend on the booking; it was usually Friday and / or Saturday. Staff on the rota who only worked on Friday or Saturday would be employed to work in the club.[19]The restaurant charged a 12.5% service charge on food and drink ordered at the table. Drinks ordered at the bar carried no service charge. The restaurant also provided a takeaway business for which there was no service charge. The distribution of the service charge was decided by Mr N Patel and Mr D Patel did not know how it was allocated. He said that all staff working in the restaurant would get a share, both kitchen and front of house staff. Staff working in the club would not be included. Mr D Patel confirmed that the respondent had no written policy setting out the allocation of service charge and tips. Tips received in cash went into a jar to be shared out, those received electronically would be paid by bank transfer. Mr Posa’s evidence was that he received £70 for cash tips but received no share of the service charge collected digitally.[20]Mr Posa stated that the restaurant was extremely busy in November and December and that Mr N Patel had told him that it had generated £200,000 in sales and received £8,000 in service charges for November 2024 and £9,000 service charges for December 2024. Mr D Patel denied that turnover was this high, since his annual turnover was only £650,000. He estimated that sales over this 6-week period would have been £150,000. Of which around 45% would be restaurant sales, with the rest allocated to the takeaway or club side of the business. I accept his evidence since as Director he is more likely than Mr Posa to know how the business was performing over this period. The contract[21]The Respondent says that Mr Posa was provided with an employment contract on the 23 October 2024 (“2024 contract”). Clause 9, setting out hours of work, stated: “the nature of your employment is such that your hours of work will be at the company’s discretion and will depend on the needs of the business. The company does not guarantee to provide you any minimum amount of work in any given week or month of the year.” The hourly rate of pay was specified as £12.50.[22]Accompanying the contract was a cover letter stating that Mr Posa’s hourly pay was £12.50 ph and that he would be working “80 hours a month, mainly evenings four hours; 20 evenings”. This may explain why Mr Posa was not required to clock in / clock out. The contract was signed by Mr N Patel. Mr D Patel confirmed that he had not personally provided the contract to Mr Posa. He says that Mr N Patel had informed him that this contract had been provided to Mr Posa on 23 October 2024 and that Mr N Patel had provided him with a copy for these proceedings. Mr Posa denied that on 23 October 2024 he was provided with this contract and cover letter and I note that it was not signed by Mr Posa.[23]Mr Posa says that Mr N Patel only provided him with a contract on 1 January 2025 (“2025 contract”): pg 4. The contract that Mr Posa relied on is exactly the same as that provided by the respondent, the only difference being that the commencement date was specified as 1 January 2025 and the hourly rate was specified as £11.44 ph not £12:50 ph. Mr Posa also relied on a pre-employment medical questionnaire and a starter form both of which identified the start date as 1 January 2025. The starter form was signed by both Mr Posa and Mr N Patel on 1 January 2025. The respondent disputed that this contract was given to Mr Posa and claims that the signature of Mr N Patel was not his signature since the signature on the 2024 contract looked different. The respondent also claimed that the contract could not have been signed on the 1 January 2025 because Mr N Patel was not working that day with reference to the rota: pg 19.[24]In the absence of evidence from a handwriting expert it is simply not possible for me to make a finding either way as to whether the signature on the 2025 contract was / or was not Mr N Patel’s. On the other hand, I did not consider the fact that neither Mr Posa nor Mr N Patel were at work on the 1 January 2025 was evidence that they did not meet on that day. Mr Posa in his examination in chief stated that Mr N Patel only gave the contract on that day “because on holiday and I basically forced him to give me a contract”. This suggested that the contract was signed on a non-work day. I accept his evidence since it was unsolicited and given before the respondent raised that Mr N Patel was not at work on that day.[25]I find that the contract that the respondent provided to Mr Posa was the 2025 contract and not the 2024 contract. The 2024 contract was not signed by Mr Posa and there is no direct evidence that Mr Posa was provided with a contract on that date. Further Mr Posa provided the 2025 contract as part of the documentation for this hearing prior to receiving the respondent’s documentation containing the 2024 contract. There was no advantage to Mr Posa to provide a false contract, he was not claiming that the respondent had failed to provide him with a written statement of particulars and the contract he provided did not provide evidence of his hours of work. Further the rate of pay in the 2025 contract was less than that set out in the 2024 contract. In the absence of any reason for Mr Posa providing a false contract, I accept his evidence. Chronological events[26]On 13 November 2024 Mr Posa commenced employment at the respondent’s restaurant “The Ravensbury” as a bar manager. He mainly worked in the restaurant but occasionally worked in the club. I accept his evidence that he was told that he would receive around £450 per week, and that he would be working five days a week but that the hours would vary. He was not asked to clock in / clock out and did not receive any pay slips during his employment.[27]Shifts were allocated by a rota which was sent out on Sunday for the next week. Mr Posa relied on the rotas which recorded his hours of work for the weeks 1 to 8 (date period 11 November 2024 to 5 January 2025pw) to be between 44 hours pw and 51 hours pw. For week 9 (date period 6 January 2025 to 12 January 2025) the rota recorded Mr Posa’s hours as 19 hours pw. Mr Patel disputed that Mr Posa would have worked the hours recorded on the rota stating that many shifts were cancelled due to low bookings. Mr Posa gave evidence, which I accept, that in fact he worked more hours than he was rostered but that he cannot prove it. On balance, I consider that it is likely that Mr Posa did work more hours than rostered due to the time of year (November and December) and also because he referred to working 60 hours a week in the last 2 months in a WhatsApp chat on 3 January 2025 (see below).[28]On 29 November 2024 Mr Posa provided Mr N Patel with his date of birth and National Insurance number by text: pg 10.[29]On 9 December 2024 £960 wages was paid into Mr Posa’s bank account: pg 28.[30]On 24 December 2024 at 19:15:32 Mr Posa sent a WhatsApp message to Mr D Patel stating: “Big bro, I am not feeling well, my whole body hurts …. We have two tables here, do you mind if I finish now”: WhatsApp pg 1. I accept that this is an example of the claimant not working the hours recorded on the rota, but that is because he was not feeling well. It is not evidence more generally that Mr Posa did not work the hours recorded on the rota.[31]On 2 January 2025 £1000 wages was paid into Mr Posa’s bank account: pg 35.[32]On 3 January 2025 at 23:05:23 Mr Posa sent a WhatsApp message to Mr D Patel stating: “Bro, I swear my mother’s life that I said yesterday to Nilay: ‘bro I am not complaining to you that I worked 60h a week in the last two months, I am not upset even tho I worked for 7£/h but now in January is a little quiet in the week, can you let me start from 5pm in weekdays ? So Monday to Thursday I have two days off, and the other two days do you mind if I start at 5pm….: WhatsApp pg 2. Mr D Patel responded, “tomorrow will talk”.[33]Mr D Patel stated in evidence that he spoke to Mr N Patel who told him that Mr Posa had not been working 60 hours a week. He said that Mr N Patel agreed in future to put Mr Posa’s actual hours of work on the rota to prevent him claiming that he was working more hours than he actually worked. Mr D Patel stated that Mr N Patel informed him that throughout his employment Mr Posa was only working 20 hours give or take 3-4 hours.[34]On 12 January 2025 Mr Posa and Mr D Patel had the following WhatsApp exchange commencing at 13:45:50: Mr Posa: “Bro this week 19h” “Next week 20h” “I’m working for 200£a week now” “This not ok“ Mr Patel: “It’s quiet now ,” “No business” “When busy u get 50 40 30 60 70” “Hrs” Mr Posa: “would you work for 200£ a week ?” “When I took this job you said you will pay me the same in January bro”…. …. Mr Posa: “Bor I’m not working for 200£ a week” “That’s it” “after I worked two months for all 7£ /” “Per hour” The exchange became heated and ended with Mr Posa resigning, stating that he will submit a claim to the tribunal and referred “no payroll, no pay slip, no service charge”. Mr D Patel responded stating “Pls” “Do it” “We never have service charge option there is gratuity which they give u I heard 70£ which only your baar service” (sic)[35]On 16 January 2025 £594.88 wages was paid into Mr Posa’s bank account: pg 33.[36]On 12 March 2025 Mr Posa commenced early conciliation. He received the early conciliation certificate on 17 march 2025. On 19 March 2025 he presented the claim form. The Respondent presented its response form on the 28 April 2025. THE LAW Unlawful deduction of wagesTHE LAW
[37]Section 13(1) of the Employment Rights Act 1996 (ERA 1996) provides that an employer shall not make a deduction from wages of a worker employed by him unless the deduction is “authorised” by statute, a written term of the contract or by agreement.[38]Under section 27(1)(ce) the definition of wages includes “any amount of qualifying tips, gratuities and service charges allocated to the worker under Part 2B of this Act”. Part 2B imposes new obligation to employers to fairly allocate tips and gratuities and service charge over which they exercise control or significant influence.[39]A worker has a right to complain to an employment tribunal of an unauthorised deduction from wages under section 23 of the ERA 1996. Itemised Pay Statements[40]Section 8(1) of the ERA 1996 provides that an employer shall provide a worker with a written itemised pay statement at or before the time at which the payment of wages is made to him.[41]A worker has a right to complain to an employment tribunal that an employer has failed to provide a written itemised pay statement under section 11 of the ERA 1996.[42]Under section 12(3) of the ERA 1996, where an employment tribunal finds that an employer has failed to give an employee any pay statement, it shall make a declaration to that effect. Under section 12(4), where a tribunal finds that any unnotified deductions have been made from the pay of the employee during the period of thirteen weeks immediately preceding the date of the application for the reference, the tribunal may order the employer to pay a sum not exceeding the aggregate of the unnotified deductions. A deduction is an unnotified deduction where it is made without the employer giving the employee particulars of the deduction in a pay statement. DISCUSSION AND CONCLUSION Did the respondent underpay Mr Posa for his hours of work between 13 November 2024 and 12 January 2025.[43]It was not disputed that Mr Posa received three payments (£960, £1000 and £594.88) totaling £2554.88 during his period of employment (13 November 2024 and 12 January 2025). What was disputed were the hours that Mr Posa worked over this period and therefore whether there had been any underpayment of wages.[44]Mr Posa submitted that he worked on average 45 hours pw over this period, relying on his own evidence and the hours of work recorded on the rotas. The respondent submitted that Mr Posa normally worked 20 hours give or take 3-4 hours, relying on the evidence of Mr Patel and the 2024 contract.[45]For the reasons set out above at paragraph 21-25 I do not accept that Mr Posa was provided with the 2024 contact and covering letter. However, even if he had been provided with this contract I still prefer the evidence of Mr Posa over that of Mr D Patel with regard to the actual hours that he worked. First, because Mr D Patel was not present and therefore is unable to provide any direct evidence regarding Mr Posa’s hours of work. Second, because Mr Posa’s evidence (and the rotas) are consistent with the contemporaneous WhatsApp messages. The rota for week nine (date period 6 January 2025 to 12 January 2025) confirmed that Mr Posa was only rostered for 19 hours that week. In the WhatsApp messages on 12 January 2025 Mr Posa complained about a reduction in his hours to 19 and 20 hours pw. I consider that if he had always been working 20 hours a week, as is claimed by the respondent, it is unlikely that there would be evidence of him complaining about a reduction in his hours of work. Mr D Patel did not respond stating that these were Mr Posa’s hours of work but instead provided an explanation for the reduction: “its quiet now” “no business”. Further Mr D Patel wrote “when busy u get 50 40 30 60 70” “Hrs”. This suggests that Mr Posa had been working longer hours in the busy period running up to Christmas and that his hours had dropped in January. Therefore, this exchange supports Mr Posa’s claim that he was underpaid over this period.[46]The respondent submitted that Mr Posa was an educated man who knew his employment rights and that he would not have worked 45 hours pw without being paid for those hours. I do not agree. Mr Posa was prepared to work without receipt of pay slips or a written contract of employment. It was only when there was a drop in his hours (which affected his income) that he started to complain. He then raised the fact that he had only being paid the equivalent of £7ph.[47]I therefore conclude that Mr Posa did work on average 45 hours pw. From the rotas provided by the claimant, Mr Posa’s hours of work between 13 November 2024 and 12 January 2025, excluding breaks, was 405 hours. According to Mr Posa his hourly rate of pay was £11.44ph. Therefore, he should have been paid £4633.20 gross for the hours that he worked. He was paid £2554.88 gross. Accordingly the respondent is ordered to pay the claimant the outstanding sum of £2078.32 gross. A complaint for unlawful deduction of raises wages arising from the underpayment of tips and / or service charge[48]For the reasons set out in paragraph XXX above I have found that the likely sales of the restaurant over the relevant period was £150,000 and accept that this would have been split between the takeaway, restaurant and club. I also accept the respondent’s submissions that the proportion generated by the restaurant was 45%. 45% of £150,000 would generate overall sales of £67,500. Assuming a 12.5% service charge on those sales (which the respondent accepted in his submissions) that would generate a pool of £8,437.[49]Mr Posa submitted that he was entitled to a third of the service charge. This was on the basis that the persons entitled to service charge were the three managers on fixed hour contracts: Mr N Patel, Mr Karka and himself. He accepted that he received £70 as a cash payment.[50]The respondent submitted that Mr Posa was not entitled to service charge at all since he worked in the club and not at the restaurant. I do not accept the respondent’s submissions, and have found as a fact that Mr Posa worked in the restaurant and only occasionally in the club. Mr D Patel was not able to provide any direct evidence as to where Mr Posa worked.[51]On the basis of Mr D Patel’s evidence I consider that all staff (both front of house and kitchen staff) should have received a share of the service charge. There were 13 staff on the rota of which 4 staff appear to have worked only, or mostly, on Fridays and Saturdays. This suggests that they were employed to work in the club. Taking a very broad-brush approach, in the absence of a more accurate calculation provided by the parties, I conclude that the service charge would have been divided equally between the 9 remaining staff. I accept that some of those staff worked less hours than Mr Posa, but then others worked more. This would entitle Mr Posa to 11.11% of the service charge. £8437 x 11.11% is £937.44. Since he accepted that he received £70, that is to be deducted. Accordingly, the respondent is ordered to pay the claimant the outstanding sum of £867.44. Failure to provide itemised pay slips.[52]The respondent did not dispute that they had failed to provide Mr Posa with itemised pay slips.[53]The respondent says that this was because Mr Posa had not provided the paperwork. However there is evidence that Mr Posa provided the necessary information and documentation on 29 November 2024. There is no explanation as to why thereafter the respondent did not provide him with pay slips. I therefore find that the respondent failed to give to the claimant an itemised pay statement in accordance with section 8 ERA 1996.[54]Under section 12(4) of the ERA 1996 I can order the respondent to pay to the claimant the aggregate of unnotified deductions made during the 13 weeks before he made a claim to the tribunal. Mr Posa submitted his claim on the 28 March 2025. Therefore 13 weeks prior to this date is 27 December 2024. This is just two weeks before Mr Posa resigned and I therefore find that he is entitled to the equivalent of two weeks’ unnotified deductions.[55]To calculate the amount of unnotified deductions I have taken the total amount of deductions which is £2078.32. The weekly deduction is £2078.32 and this provides a weekly deduction of £239.801. Accordingly, the respondent is ordered to pay the claimant the sum of £479.61 gross.CONCLUSION
[56]I therefore conclude that:56.1 The respondent made an unauthorised deduction of wages by failing to pay the claimant his full wages for the period between 13 November 2024 and 12 January 2025, and is ordered to pay the claimant the sum of £2,078.32 gross. 1 £2017.32 /2 (to obtain monthly amount) x 12/52 (to obtain weekly amount)56.2 The respondent made an unauthorised deduction of wages by failing to pay him his share of the service charge received for the period between 13 November 2024 and 12 January 2025, and is ordered to pay the claimant the sum of £867.44 gross.56.3 The respondent failed to provide the claimant with an itemised pay statement, and is ordered to pay the claimant the sum of £479.61 gross. This judgment has been approved by: