T H Dulak v Advance Staff Ltd and Mark Thompson Transport Ltd: 6020340/2024

EMPLOYMENT TRIBUNALS

Case No 6020340/2024

Between

T H DulakClaimant

1. Advance Staff Ltd 2. Mark Thompson TransportRespondent

Before

Employment Judge Batten

Not represented for claimant

Date 17 October 2025

JUDGMENT

On the non-appearance by the claimant by 10.30 am on the day of the hearing, and in the absence of any explanation for his non-appearance, and in the exercise of its powers under Rule 47 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2024, the Tribunal dismisses the claim of the claimant. JUDGMENT ON A RECONSIDERATION The judgment of the Tribunal is that:

[1]The judgment sent to the parties on 20 October 2025 is revoked; and

[2]The claim is dismissed.

REASONS

[1]On 30 November 2024, the claimant presented a claim to the Tribunal about unpaid wages in relation to a day’s pay. The respondents each responded to the claim on 2 January 2025.

[2]At a final hearing on 17 October 2025, the Tribunal gave judgment dismissing the claim upon the non-attendance of the claimant at the hearing that day, pursuant to rule 47 of the Employment Tribunal Procedure Rules 2024. Judgment was sent to the parties on 20 October 2025.

[3]On 21 October 2025, the claimant applied for a reconsideration and to set aside the judgment.

[4]On 15 February 2026, the claimant applied for a stay of the reconsideration hearing, pending determination of his appeal to the Employment Appeal Tribunal against the judgment sent to the parties on 20 October 2025. The application for a stay was refused. This hearing was listed as a reconsideration hearing and also, dependent on the outcome of the reconsideration, the final hearing of the claim.

Evidence

[5]The Tribunal was provided with a file of 67 pages of documents from the respondents together with witness statements from Mr Ben Friend, a director of the first respondent, and Mr Paul Prior, senior transport manager of the second respondent.

[6]In 2025, the claimant had sent written representations about the conduct of the respondents, and a witness statement dated 19 March 2025, together with screen shots of job offers and WhatsApp messages. He re-sent all these documents to the Tribunal in advance of this hearing.

[7]On 2 March 2026, the claimant sent 2 emails to the Manchester Employment Tribunal. The first email, at 15.17, was headed “Final Written Representation of Tomasz Henryk Dulak” and contained the claimant’s submissions about the conduct of the hearing on 17 October 2025 alleging that that hearing was unlawful, applying to strike out the responses, and for a preparation time order. The claimant’s second email, at 19.26 on 2 March 2026, sought to change the nature of the claim from arrears of pay to breach of contract and sought also to claim 4 weeks’ pay pursuant to section 38 of the Employment Act 2002 (“EA02”) on the basis that neither respondent had given him a statement of employment particulars in accordance with section 1 of the Employment Rights Act 1996 (“ERA”).

Issues

[8]The Tribunal discussed the issues to be determined with the parties present, at the start of the hearing. The issues are as follows:a. On reconsideration - whether the judgment should be revoked in light of the fact that the claimant had sent written submissions and evidence before the hearing on 17 October 2025 which had not been brought to the Tribunal’s attention at that time;

b. If the judgment is revoked, to proceed to determine the issues in the claim, namely: i. Is the claimant entitled to be paid for the day of 20 August 2024? ii. Were the respondents, or either of them, in breach of contract? iii. If any claim succeeds, were the respondents, or either of them, in breach of the duty to provide written particulars of employment pursuant to section 1 ERA? iv. If so, to what compensation is the claimant entitled?

Findings of fact

[9]The Tribunal made the following findings of fact on the basis of the material before it, taking account of contemporaneous documents where they exist and the conduct of those concerned at the time. Where a conflict of evidence arose, the Tribunal resolved such on the balance of probabilities. The findings of fact relevant to the issues are as follows.

[10]The first respondent is an employment agency. The second respondent is a road transport haulage and logistics company. The claimant is an agency driver who had registered with the first respondent in 2023 but had not, prior to the day in question, done any work for the first respondent.

[11]On or about 19 August 2024, the second respondent contacted the first respondent enquiring about whether it could supply a driver for a shift the next day, 20 August 2024. The first respondent put out an advert via the internet and also by text, for a driver to fulfil the job with the second respondent. The advert appears in the bundle at page 55 and says in clear terms that the role includes “conducting daily vehicle checks via a mobile app”. That is stated to be part of the job/role.

[12]The claimant saw the advert for the shift with the second respondent and contacted the first respondent to say that he was available for work on 20 August 2024. The claimant was offered the assignment on the basis of everything set out in the advert. The claimant understood that he would be placed to work for the second respondent, via the first respondent as an employment agency.

[13]The claimant was then sent the second respondent’s induction pack. This appears at page 47 of the bundle onwards. It includes a section headed “Checked Safe”, which is the name of the second respondent’s mobile app. The induction pack incorporates a user agreement for the Checked Safe mobile app which says “Upon receiving your first shift with Mark Thompson Transport Limited, [you must] ensure you have downloaded the Checked Safe application before you arrive at the depot. Once downloaded a member of the Operations team will provide you with login details and explain how to use the app”.

[14]On 20 August 2024, the claimant signed a declaration in the induction pack, which appears on page 48 of the bundle, to the effect that “I confirm I have read and understood the above information and I have downloaded the Checked Safe application”. The claimant did not raise any issues about the use of a mobile app nor the user agreement for the mobile app with either of the respondents at that time.

[15]In reliance upon the claimant’s signed declaration, the first respondent sent the claimant’s completed induction pack to the second respondent, at just after 2.00pm on Tuesday 20 August 2024.

[16]The claimant reported for work at the second respondent at around 3.00pm that day. However, when asked about the mobile app, the claimant had not downloaded it, and he refused to install it on his personal phone. As a result, the claimant left the second respondent’s premises; he did not start the shift, nor did he do any work for the second respondent.

The applicable law

[17]A concise statement of the applicable law is as follows. Unauthorised deductions from wages

[18]A worker is entitled to be paid for work done under his or her contract of employment. ERA, Part II, provides that a failure to pay wages owing constitutes an unauthorised deduction from wages.

[19]Wages are defined in section 27 ERA. Section 27(1) (a) provides that: “Wages includes any fee, bonus, commission, holiday pay or other emolument referable to his employment whether payable under his contract or otherwise”. Breach of contract

[20]The Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994, section 3, provides that a claimant can pursue a claim of breach of contract in circumstances where the claim arises or is outstanding on the termination of the employee’s employment. Awards for failure to give statement of particulars – s38 EA 02

[21]Section 38 of the Employment Act 2002 provides that if a claimant succeeds with certain claims before the Tribunal, such as his/her claim for unauthorised deductions from wages, then the Tribunal must consider whether the respondent was in breach of its duties under sections 1 and/or 4 of the Employment Rights Act 1996, namely whether the respondent gave the claimant a written statement of initial employment particulars or a statement of particulars of change, in accordance with sections 1 and/or 4 of the Employment Rights Act 1996. If the respondent has failed to comply with those duties, the Tribunal can make certain additional awards in relation to any failure by the respondent. Conclusions (including where appropriate any additional findings of fact)

[22]The Tribunal has applied its relevant findings of fact and the applicable law to determine the issues in the following way. The reconsideration application

[23]The claimant’s case for reconsideration of the judgment sent to the parties on 21 October 2025, was simply that the Tribunal fell into error by dismissing his claim because he had failed to attend the hearing. The claimant relied upon rule 42 of the Employment Tribunal Procedure Rules 2024 and also the contents of the Tribunal’s notice of hearing which states that a party is entitled to send in written representations sent in at least 7 days before the hearing and that such shall be considered by the Tribunal at the hearing even where the party does not attend.

[24]The claimant had sent written representations to the Tribunal on or about 12 June 2025 and he contended that the Tribunal was therefore under a duty to consider his submission before deciding to dismiss the claim.

[25]It was apparent that the claimant had indeed sent in written representations many months before the hearing on 17 October 2025. Regrettably, these had not been identified on the Tribunal file nor drawn to the Employment Judge’s attention.

[26]In those circumstances, the Tribunal considered it was in the interests of justice that the judgment sent to the parties on 20 October 2025 be revoked. The hearing proceeded thereafter as the final hearing of the claim. The claim for unpaid wages

[27]The claimant’s case is that he attended for work at the second respondent on 20 August 2024 and was sent home without pay. The claimant contends that he fulfilled his obligations and so should be paid for the day. The claimant submitted that his agreement to work “did not include consent to actions exposing [him] to breaches of the Data Protection Act 2018”. The claimant also complained that he was not provided with a ‘key information document’ or a statement of employment particulars.

[28]The Tribunal noted first that the job advert to which the claimant responded stated that the job would involve “conducting daily vehicle checks via a mobile app” – paragraph 11 above. The shift was offered on that basis.

[29]The second respondent’s induction pack included a user agreement for the mobile app and also made clear that a driver would need to download the second respondent’s app before they arrive at the second respondent’s depot. The Tribunal considered that the fact that this action must be undertaken before arrival at work suggests, on a balance of probabilities, that the expectation is for a driver to install the app onto their own mobile phone. There was no suggestion that either the second, and/or first respondent would or did provide a driver with any other equipment by which to download and/or operate the mobile app. In any event, the claimant never raised any issue about such.

[30]Before attending for work, the claimant had received and should have read the induction pack. He had confirmed and signed in effect to say that he would download the Checked Safe application. However, the Tribunal found that the claimant’s signed declaration was not correct and the claimant had been reckless as to its veracity. When he signed, he had not in fact downloaded the Checked Safe application, nor was it likely that he had read, with any care, the requirement to use the app; he had no intention of fulfilling that requirement.

[31]When the claimant reported for work at the second respondent, the Tribunal found that he was on notice of the need to use the Checked Safe mobile app. He objected to this condition of employment. As a result, the Tribunal considered that it was the claimant’s decision not to drive for the second respondent because he objected to the terms of the employment offered to him, namely the requirement for installation and use of an app on his phone. This was despite the claimant having signed a declaration to the effect that he had or would download the app, when he had not and did not.

[32]In those circumstances, the Tribunal considered that no contract for work was formed. The claimant did not accept the respondents’ terms in respect of use of the app, which had been made plain in both the advert and in the induction pack. The claimant is therefore not entitled to wages for that day or any part of it, because he objected to the use of the app and so did not start work. The claim for unpaid wages therefore fails.

[33]In respect of breach of contract, the Tribunal found that neither respondent was in breach of any contract, none being formed at the relevant time or at all. Rather, the claimant was in error through signing a declaration without either reading or understanding its implications, or alternatively signing the declaration whilst having no intention of complying with its requirements.

[34]Section 38 EA 02 applies only if the claimant succeeds with his primary claim for unpaid wages which is not the case here. In any event, the Tribunal found that the claimant was an ‘agency worker’ at the material time and therefore he was excluded from the provisions of Section 38 EA 02 by reason that he was not an employee of either the first or the second respondent. In addition, the claimant had not worked for either respondent for a month in any capacity.

[35]In light of all the above, the claim fails and dismissed. Approved by: