Mr M Chicheko v Global Caring Group Ltd: 6038541/2025 and 1304682/2025
JUDGMENT
[1]The complaint in respect of holiday pay is well-founded. 1.1. The respondent made unauthorised deductions from the claimant's wages by failing to pay the claimant for holiday hours taken between 7 and 21 April 2025 and for holiday hours accrued but not taken on the date the claimant’s employment ended. 1.2. The respondent shall pay the claimant £3,118.50, which is the gross sum deducted. The claimant is responsible for the payment of any tax or National Insurance.[2]The complaint of breach of contract in respect of the non-payment of the following is well founded: 2.1. In February 2025 in respect of 33 hours work for which he was not paid 2.2. In March 2025 in respect of 144 hours work for which he was not paid 2.3. In April 2025 in respect of 57 hours work for which he was not paid 2.4. In respect of a monthly fuel allowance for May, June and July 2025. 2.5. The respondent shall pay the claimant £3,567.78 as damages for breach of contract. This is the net value to the claimant of the amount due.[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 £1660.52. Complaint Compensation Gross or net awarded Holiday pay/unauthorised deductions £3118.50 Gross Breach of contract £3567.78 Net Failure to provide statement of particulars £1660.52 Gross Total award £8,346.80REASONS
[1]Following a period of ACAS Early Conciliation between 2 September 2025 and 14 October 2025, on 19 October 2025 the claimant presented a claim which was allocated claim number 6038541/2025 for unpaid wages in March, May and June 2025, unpaid holiday in April 2025 and for unpaid fuel allowance between May and July 2025.[2]On 26 November 2025 the claimant presented a second claim which was allocated claim number 1304682/2025 for unpaid wages for the same unpaid wages but correcting the months they had not been paid to February, March and April 2025. He also claimed he had not been provided with a statement of particulars and claimed unpaid holiday pay for the holiday year April 2024 - March 2025.[3]Both claims were served by the Employment Tribunal on the Respondent. No response was received in respect of either claim from the Respondent. The parties were notified that the Employment Tribunal was considering consolidating the claims.[4]On 26 April 2026, the claimant applied to amend claim 6038541/2025 to include the claims he had presented in 1304682/2025 so that his claims could be dealt with under one claim not two and claim 1304682/2025 could be dismissed on withdrawal.[5]The claimant attended the hearing and provided a bundle of documents of 94 pages. The claimant also gave oral evidence. The respondent did not attend today’s hearing. The claimant explained that save in respect of an initial engagement with him via ACAS, evidence of which was contained in the bundle of documents which clearly referred to the claim number and indicated that the respondent was aware of the claim, the respondent has not communicated with him about his claims. No ET3 or communication from the respondent has been received and as such there were no contact details to be able to make further enquiries as to the reasons for the respondent’s non-attendance. In the circumstances, I decided to proceed in the respondent’s absence.[6]Having considered the nature of the amendments, essentially combining two claims which were presented into one, neither of which the respondent has submitted a defence to in circumstances where it had been notified of the potential for their consolidation in any event, I decided to allow the amendment, and determine the amended claim 6038541/2025 at today’s hearing.[7]The claimant withdrew claim 1304682/2025 and that claim is dismissed upon withdrawal.Findings of fact
[8]The claimant commenced employment with the respondent as a Care Assistant on 20 April 2024. He was not provided with a written contract of employment and did not have set hours of work, instead working the shifts he was provided by the respondent. As shown by payslips, his hourly rate of pay up to and including February 2025 was £11.90. There is no payslip for March and therefore I find the pay rate remained £11.90 until April when it increased in line with the timing of the increase to the National Minimum Wage. His hourly rate of pay in April 2025 was £12.82 and his hourly rate of pay from May 2025 was £13.50.[9]The claimant’s evidence, which I accept, was that he was not told by the respondent when he started employment about the right to take or be paid for annual leave nor encouraged to take paid annual leave. Therefore, between 20 April 2024 and 6 April 2025, he did not take any annual leave.[10]In February 2025 the claimant recorded in his handwritten note that he worked 133 hours. However, in his pay on 5 March 2025 he was only paid for 100 hours leaving a shortfall of 33 hours equating to £392.70 gross.[11]In March 2025 the claimant worked 284 hours. However, his evidence was that he was only paid for 140 hours leaving a shortfall of 144 hours equating to £1713.60 gross.[12]By March 2025 the claimant had become aware of his right to take annual leave and on 11 March 2025, the claimant completed a request to take 15 days annual leave between 7 and 21 April 2025.[13]In April 2025 the claimant worked on 1-6 April 2025 but was not paid for the 57 hours he worked equating to £730.74 gross.[14]The claimant worked a total of 83.75 hours in April 2025, but his payslip states he was paid for 140 hours. The claimant’s unchallenged evidence was that his April 2025 payslip actually related to hours he worked in March 2025 not April.[15]Between 7 and 21 April 2025 the claimant took 15 days annual leave, which he had requested on 11 March 2025. The claimant’s evidence was that he did not receive any pay for it.[16]In May 2025 he worked 111 hours. In June 2025 he worked 96 hours. In July 2025 he worked 73 hours and in August 2025 he worked 182 hours. The claimant does not allege that he was not paid for these hours.[17]Prior to May 2025 the claimant was entitled to receive a £20 fuel payment for each shift he worked. He provided bank statements showing such payments and explained that they got paid weekly. On the claimant’s February payslip there was a £100 expense payment which the claimant was unsure about but could have been in respect of fuel.[18]The claimant gave evidence that he was informed by the respondent that from May 2025 he would instead receive a fuel allowance of £300 per month. He did not receive this fuel allowance in May, June or July 2025. In a WhatsApp message on 18 June 2025 the claimant asked the respondent about this payment as he had not received anything.[19]The claimant complained about the discrepancies in his pay during his employment on 24 July 2025 and I was taken to screenshots of various WhatsApp messages between the claimant and respondent, for example one on 26 June 2025 in which the claimant was pointing out that his April payslip was in fact for March 2025. The claimant’s evidence was that he still did not get paid what he was owed and he resigned. His last day of employment was 18 August 2025. All of the underpayments described above remained outstanding on the termination of his employment. Law Right to be provided with a written statement of particularsLaw
[20]Section 1 of the Employment Rights Act 1996 (ERA 1996) requires that when a worker begins employment with an employer the employer must provide the worker with a written statement of particulars of employment. Subsections 1(2)-(7) ERA 1996 set out the particulars which must be contained within that statement.[21]Section 38 ERA 1996 states that a Tribunal must award compensation to a worker where, on a successful claim being made under any of the jurisdictions listed in Schedule 5 ERA 1996, it becomes evident that the employer was in breach of its duty to provide full and accurate written particulars under section 1.[22]Schedule 5 ERA 1996 includes claims for unlawful deductions from wages, breach of contract and breach of the Working Time Regulations 1998 (WTR 1998).[23]Section 38(2)-(5) ERA 1996 provides that the compensation to be awarded is either a minimum amount of two weeks’ pay or if it considers it just and equitable in the circumstances a higher amount of four weeks’ pay.[24]A week’s pay is calculated in accordance with section 220-229 ERA 1996. Calculation of a week’s pay[25]For the purposes of calculating a week’s pay in relation to compensation for failure to provide a statement of particulars, the calculation date is the effective date of termination (s.226(2) ERA 1996).[26]For the purposes of calculating a week’s pay in relation to periods of annual leave pursuant to Regulation 16 WTR 1998, the calculation date is the first day of the period of leave in question (Reg 16(3)(c) WTR 1998).[27]For a worker with no normal working hours, s.224 ERA 1996 provides that pay is calculated according to the average weekly remuneration over a 12-week period. Claims for sums due under a contract of employment[28]Under section 3(2) of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623 the Employment Tribunal has jurisdiction to hear a contractual claim brought by an employee which is outstanding on the termination of their employment and is for recovery of a sum due under such a contract. Article 7 of the Order provides that such a claim must be made within the period of three months beginning with the effective date of termination of the contract giving rise to the claim. Annual leave and the Working Time Regulations 1998[29]Regulation 15F WTR 1998 defines a worker as an irregular hours worker if, in relation to a leave year, the number of paid hours that they will work in each pay period during the term of their contract in that year is, under the terms of their contract, wholly or mostly variable.[30]Pursuant to Regulation 15B(7) WTR 1998 where there is no relevant agreement relating to when a leave year starts, the default position is that it begins on the date on which the worker’s employment began.[31]Regulation 15B(2) WTR 1998 provides that the amount of annual leave to which an irregular hours worker is entitled at any time during a leave year is the amount of annual leave that they have accrued in that year, plus the amount of annual leave (if any) that they have carried forward into that leave year, less the amount of annual leave (if any) that they have taken during that leave year.[32]Regulation 15B(3)(b) WTR 1998 provides that in each leave year an irregular hours’ worker accrues annual leave on the last day of each pay period at the rate of 12.07% of the number of hours that they have worked during that pay period but it cannot exceed more than 28 days of annual leave (Regulation 15B(4) WTR 1998).[33]Regulation 15D(5) WTR 1998 provides that irregular hours workers have the statutory right to carry over any of their statutory holiday entitlement where, in any leave year, the employer fails to: 33.1. recognise the worker’s right to annual leave or to make payment for it under Regulation 16 WTR 1998, 33.2. give the worker a reasonable opportunity to take annual leave or encourage them to do so, or 33.3. inform the worker that any annual leave not taken by the end of the leave year which cannot be carried forward will be lost.[34]Regulation 15E(2) WTR 1998 provides that where the worker’s employment is terminated during the course of their leave year and at the date on which the termination takes effect, the worker has not taken all of the annual leave to which they are entitled under regulation 15B(2) the worker’s employer must make the worker a payment in lieu of that untaken leave, equal to the amount that would be due under regulation 16 in respect of the untaken leave.[35]Regulation 16 WTR 1998 sets out how to calculate what pay a worker is entitled to be paid in respect of any period of annual leave to which he is entitled. Unlawful deductions from wages[36]Sections 13(1) and 23 ERA 1996 provides workers with the right not to have unauthorised deductions made from their wages by their employer. Section 13(3) ERA 1996 provides that: (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.[37]Section 23(2) ERA 1996 provides that there is a three-month limitation period in which a claim must be presented or if not reasonably practicable then within such period as was reasonable thereafter and section 23(3) ERA 1996 states that where there are a series of deductions the limitation period starts to run from the date of the last deduction in the series. Conclusions Unpaid hoursConclusions
[38]Although the claimant was not provided with a written statement of particulars, it is apparent that there was a contract of employment between the claimant and respondent under which the claimant worked as a Care Assistant for the respondent and would receive pay at a specific hourly rate for the hours he worked.[39]It is also clear from the claimant’s handwritten records of his hours worked and the payslips he has produced to the Employment Tribunal that in each of February 2025, March 2025 and April 2025 the claimant was not paid for all of the hours that he worked as set out at paragraphs 9, 10 and 12 above.[40]That non-payment of sums due amounted to a breach of contract which the Employment Tribunal has jurisdiction to determine because those sums remained due on termination of the claimant’s employment and the claimant presented his claim for those sums due within three months of the effective date of termination.[41]The damages payable by the respondent is the net amount which the claimant would have received had he been paid in accordance with the terms of his contract, as follows: 41.1. February 2025: 33 hours at calculated as £370.92 net (using a net hourly rate of pay of £11.24 based on gross annual pay for the 24/25 tax year) 41.2. March 2025: 144 hours calculated as £1618.56 net (using a net hourly rate of pay of £11.24 based on gross annual pay for the 24/25 tax year) 41.3. April 2025: 57 hours calculated as £678.30 net (using a net hourly rate of pay of £11.90 based on an approximation of the claimant’s gross annual pay for the 25/26 tax year based on his earnings the previous financial year) Unpaid fuel allowance[42]I have found as a fact that the respondent informed the claimant that from May 2025, he would receive £300 per month in respect of fuel allowance, replacing an earlier contractual term that he would receive £20 fuel allowance per shift. I am satisfied that this amounted to a variation of the claimant’s contractual terms.[43]I have found as fact that the claimant was contractually entitled to but not paid this allowance in May, June and July 2025, and as such that non-payment of sums due amounted to a breach of contract and was outstanding on termination of employment. As above the Employment Tribunal therefore has jurisdiction to determine this claim and it is well-founded. Annual leave[44]The claimant meets the definition of an irregular hours’ worker because his hours mostly varied each pay period. He had no written contract of employment and absent any evidence of a relevant agreement with regard to leave year, pursuant to Regulation 15B(7) WTR 1998 the claimant’s leave year ran from 20 April to 19 April.[45]Pursuant to Regulation 15B(3) WTR 1998 the accrual of the claimant’s entitlement to annual leave each leave year is to be calculated by reference to 12.07% of the number of hours worked during each pay period in the leave year, subject to a maximum of 28 days.[46]On the claimant’s payslip for February 2025, the claimant’s gross pay to date was stated to be £11,935.86. At an hourly rate of £11.90 this would have equated to him having worked 1003 hours since he commenced employment on 20 April 2024. However, I have found as a fact that the claimant had actually worked and was entitled to be paid for an additional 33 hours in February 2025 which brings the total hours worked to the end of February 2025 to 1036. The claimant’s March 2025 payslip was missing but his evidence was that he worked 284 hours that month which means that by the end of the March 2025 pay period the claimant had worked (and should have been paid for) 1320 hours. 12.07% of 1320 hours equates to 159 hours of accrued holiday up to the end of March 2025.[47]In April 2025 the claimant worked 1-6 and took 7-21 April as annual leave. Applying Regulation 15C(2) WTR 1998 to calculate the amount of accrued annual leave for that pay period gives a figure of 16 hours accrued holiday in April 2025.[48]Between May 2025 and 18 August 2025, the claimant worked 462 hours, 12.07% of which equates to 56 hours of accrued annual leave.[49]Therefore, the total amount of annual leave accrued by the claimant during his employment by the respondent was 231 hours (159+16+56).[50]The claimant did not receive any pay in respect of his annual leave between 7- 21 April 2025 and nor was he paid in respect of any accrued but untaken holiday, leaving the total sum payable to the claimant in relation to holiday pay upon termination of employment as £3118.50 gross (231 hours x £13.50 (his gross hourly rate of pay upon termination)). The respondent’s failure to pay that sum to the claimant upon termination of his employment amounted to an unlawful deduction from his wages. Written statement of particulars[51]The claimant has been successful in respect of his claims above, which fall within Schedule 5 ERA 1996. As set out above, the claimant was not provided with a written statement of particulars. This remained the case at the start of and throughout these proceedings. No defence has been provided by the respondent and therefore there is no explanation for its failure. I am satisfied that it would be just and equitable to award the maximum four weeks pay as compensation in this case because although the respondent may not be a large household name employer, it ought to have been aware of the basic requirement to provide a statement of particulars and there was a complete disregard by the respondent, for the duration of the claimant’s employment over more than 12 months, of that requirement. This led to difficulty in establishing what contractual arrangements were in place, what holiday entitlement the claimant had, when the holiday year commenced and what the position was in respect of fuel expenses and/or allowances. It put the claimant to a distinct disadvantage in trying to understand and enforce his rights and entitlements.[52]In calculating a week’s pay, I have used the hours provided by the claimant for the months of May, June, July and August 2025 to establish that in the 12 weeks before the effective date of termination of 18 August 2025, he worked 369 hours (351 hours between 1 June and 18 August and 18 hours between 27-31 May calculated by reference to total hours worked in May) at a rate of £13.50 per hour. That provides for gross weekly pay of £415.13. Approved by: Employment Judge Kight 11 August 2026 Notes All judgments (apart from judgments under Rule 51) and any written full reasons for judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s). If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/