Mr P Ogilvie v Global Eco Installations Ltd: 8000570/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000570/2025Venue GlasgowHearing 22 July 2025
Between
Mr P OgilvieClaimantGlobal Eco Installations LtdRespondent
Before
Employment Judge P O’DonnellMs G Veitch (instructed by Solicitor) for respondentDate 30 July 2025
JUDGMENT
[1]The respondent has made an unauthorised deduction from the claimant’s wages and is ordered to pay the claimant the sum of £1740 (ONE THOUSAND SEVEN HUNDRED AND FORTY POUNDS).[2]The Tribunal also makes an additional award under section 38 of the Employment Act 2002 equivalent to two weeks’ wages amounting to £1080 (ONE THOUSAND AND EIGHTY POUNDS).
REASONS
[1]The claimant has brought a claim under Part 2 of the Employment Rights Act 1996 alleging an unlawful deduction of wages by the respondent. This relates to a period of 10 days when the claimant was not at work in the circumstances set out below but was willing to and available for work.[2]The respondent defends the claim. In their ET3 response form, they assert the claimant was not entitled to be paid because he was not working. At the outset of the hearing, the Tribunal drew the respondent’s agent’s attention to a number of cases which made it clear that the legal position was not as simple as that and the employer’s duty to pay was not extinguished where the employee was willing and able to work but prevented from doing so by an impediment beyond their control.[3]In reply, Ms Veitch stated that it was the respondent’s case that there was a verbal agreement between the respondent and the claimant that he was not entitled to be paid if he could not work in the relevant circumstances. This was not pled in the ET3 and the Tribunal found it highly surprising that such a fundamental issue (the claim turned entirely on this point) was not pled or even hinted it. The Tribunal had a concern that the claimant did not have fair notice of the respondent’s defence. Although she apologised for the situation, Ms Veitch proffered no explanation why such a fundamental point had not been pled.[4]The Tribunal considers that this was a highly unsatisfactory position especially where the respondent is legally represented. In other circumstances, the hearing may have needed to be discharged to allow the ET3 to be amended and the claimant given the opportunity to prepare to answer this point. This would have given rise to the question of expenses or even wasted costs.[5]However, the claimant confirmed that he was happy to proceed with the hearing and could answer this defence; he asserted there was no such agreement and could lead evidence about that from his witness and himself. In light of that, I considered that it was in keeping with the Overriding Objective to proceed with the final hearing and avoid delay in resolving the case.
Evidence
[6]The Tribunal heard evidence from the following witnesses:-a. The claimant.b. Ross Telford (RT) – a colleague of the claimant who was employed at the same time and worked with the claimant.c. John Gorman (JG) – a director of the respondent.[7]There was a file of documents prepared by the respondent. The claimant relied on documents in that file and did not produce any additional documents of his own. A reference to a page number below is a reference to a page in that file.[8]This is a case which turned on two disputes of fact between the claimant and respondent; whether there had been a verbal agreement that the claimant would not be paid if he could not work in the circumstances relevant to this case; whether the claimant had been provided with the written statement of terms and conditions of employment that appears at pp29-44.[9]For the following reasons, the Tribunal prefers the evidence of the claimant and RT over that of JG in respect of both of these disputes of fact. The Tribunal has taken account of all of these as a whole with no single factor being determinative on its own.a. The claimant and RT gave clear and consistent evidence that there had been no agreement that the claimant would not be paid in the relevant circumstances. They both gave evidence that the fact that the claimant could not drive was raised when they were both employed and that JG stated that, if RT was not at work, a driver would be found for the claimant from one of the other businesses run by JG and the other director of the respondent with nothing being said about the claimant not being paid. The weight of evidence is, therefore, with the claimant.b. Similarly, both the claimant and RT gave evidence that no written contract or statement was provided to them at any time during their employment. RT gave evidence that when he was promoted to supervisor in May 2024 he asked for a written contract but nothing was issued.c. In contrast, the evidence of JG on this point was unsatisfactory; he did not say that he issued any written contract or statement and made reference to this being dealt with by the manager at the time, Darren Young, who was not called to give evidence. This is at best hearsay and JG could not say that the statement at p29 was given to the claimant. The highest point of his evidence was that the document was in the office available for the claimant to sign and take away a copy. This is very different from the claimant being given the document and there was no evidence led by the respondent that the claimant was ever asked to review and sign the statement or even had his attention drawn to the fact that he could view the document. In this respect, the Tribunal bears in mind that the claimant did not work in the office or even attend it on a regular basis; he travelled directly from home to the site at which he was working on any given day. Further, the claimant asked for his contract during the events relevant to this case and there was no response to this at all from the respondent, let alone any indication that the document was in the office or had been provided previously.d. The evidence of the claimant and RT that they were told that a driver would be provided by the respondent from the business or another business run by the directors is consistent with what happened in practice. The claimant gave evidence that, on any previous occasion when RT was not at work, a driver was provided and gave the names of people who had driven. This was not disputed by JG when the Tribunal asked him to comment on this.e. There was no evidence of any instance of the claimant not being provided with work and not being paid when RT was absent. It was put to the claimant in cross-examination that he was on unpaid leave on 17 January 2025 when RT was also off and he replied that he had taken unpaid leave on 16 and 17 January 2025 due to his grandfather passing away and having to attend the funeral, it being a coincidence that RT was also off on 17 January.f. In his evidence-in-chief, JG sought to give evidence about other instances where the claimant was not paid due to RT not being at work and making reference to timesheets (which were not in the file of documents). Nothing to this effect was put to the claimant in crossexamination and the Tribunal did not permit this line of evidence to be developed further.g. There is no reference whatsoever to the purported agreement in the exchange of WhatsApp messages between the claimant at JG in the period in question (pp45-54). In particular, at p53, the claimant sends a message raising a number of issues about the situation including an assertion that the respondent was unlawfully holding back the claimant’s wages. The Tribunal would expect the respondent to make reference to the purported agreement as it is a complete answer to this assertion but there is no response from JG at all. It was asserted by JG in his evidence that the other director answered this message but there was no evidence of what, if any, response was given to the claimant.h. On the other hand, there is a reference to JG trying to find someone to drive the claimant (p45) and the claimant asking about whether someone had been found (pp46 & 47) which is consistent with the claimant’s evidence that alternative drivers would be provided.i. As noted above, the existence of the verbal agreement was not pled in the ET3 and only emerged when the Tribunal queried the defence being advanced. The Tribunal proceeds on the basis that the ET3 drafted by the respondent’s agent accurately reflects the instructions given by the respondent to their agent. In the absence of any explanation why the ET3 does not reflect the respondent’s case, the Tribunal considers that a possible inference is that the verbal agreement is a later invention. At the very least, it demonstrates a lack of consistency in the case being advanced by the respondent.j. The written statement at p29 is signed by the other director of the respondent, James O’Brien, on 2 February 2024 (10 days before the claimant commenced employment) but is unsigned by the claimant (p44). Further, the claimant had been sent this electronically after his resignation and had extracted the metadata (p63) of the electronic document. This data records the document being created on 4 February 2025, the day after the claimant resigned. When the Tribunal asked JG to comment on this, he could provide no explanation why the metadata shows the document as having been created after the claimant resigned and more than year after it was purportedly signed by Mr O’Brien.k. In his evidence, JG sought to suggest that the written statement had been provided because the claimant (and RT) could describe to him some of the terms such as basic pay, the bonus structure, targets and holidays. However, the evidence given by both the claimant and RT was that these matters had been described to them verbally when they were recruited. This is as, if not more, plausible an explanation for why the claimant and RT would know what they were paid.[10]Having taken all of these factors into account, the Tribunal does not consider that the evidence led by the respondent was credible or reliable and where there was dispute between the evidence of the respondent and the evidence led by the claimant then the Tribunal prefers the evidence of the claimant and RT.[11]In particular, the Tribunal finds that there was no agreement between the claimant and respondent as asserted by the respondent and that the claimant had not been provided with any written contract or statement of terms and conditions of employment. Findings in fact[12]The Tribunal made the following relevant findings in fact.[13]The claimant commenced employment with the respondent on 12 February 2024 as a cavity wall technician. RT started employment at the same time in the same role. Both of them had been working in a similar role for another company when RT received an alert from a job website, Indeed, that the respondent was looking to recruit cavity wall technicians. The pay and bonus was better than their current job and they applied for the job with the respondent as a team.[14]The claimant was paid weekly with a basic pay of £696 gross and £540 after tax.[15]The claimant does not drive and does not have a driving licence. At their previous employment, RT did the driving. The job of cavity wall technician is carried out at the premises or homes of customers and involves the use of equipment that requires transport. The claimant and RT would travel from their homes directly to wherever they were working that day with the claimant being driven by RT. They did not attend an office or yard before travelling to the customer’s premises.[16]The claimant and RT informed the person who interviewed them (Danny Young) about the fact the claimant did not drive. This was not an issue and they were recruited.[17]On their first day of employment, the claimant and RT were asked to attend the respondent’s head office in Stepps for an induction. When they were at the office they were introduced to JG, one of the directors of the respondent. There was a discussion between the claimant, RT and JG about what would happen if RT was off given that the claimant could not drive. JG said that this would not be an issue and he would find another person to drive the claimant to wherever he was working. This would either be someone from the respondent’s business or from another business operated by JG and his business partner, James O’Brien, who was also a director of the respondent.[18]During the course of his employment with the respondent, there were occasions when RT was not at work and in each instance another driver was found to take the claimant to wherever he was working that day.[19]The claimant took unpaid leave on 16 and 17 January 2025 due to the death of his grandfather and to attend the funeral. He was due to return to work on 20 January 2025.[20]On 19 January 2025, RT informed the respondent that he would not be at work that week as he was unwell. JG sent a WhatsApp message (p45) to the claimant that day informing him of RT’s absence explaining that the claimant would not be working on the Monday but that JG would try to get someone to work with him for the rest of them week.[21]On 20 January 2025, JG sent the claimant a message stating that he could not get anyone to work with him that week (p45). The claimant asks if he could take holidays instead (p46). On 21 January 2025, the claimant sends a message to JG stating that he hopes someone can be found for the next day (p46). On 22 January 2025, the claimant sends a message to JG asking if he has found anyone for the next day to which JG replies that he has had “no joy” (p47). The claimant was not provided with any work that week.[22]RT had been due to return to work on 27 January 2025 but continued to be unwell. Another technician, Callan, was returning from holiday on 27 January and the claimant was to work with him. Unfortunately, Callan was involved in a traffic collision and was also unfit for work.[23]The claimant sent a number of messages to JG on 26 and 27 January 2025 (p48) asking what was happening and that he could not get hold of Callan. JG replies that the claimant was not working that week as both RT and Callan are off. He also informs the claimant that he has no holidays due so cannot take any. The claimant states that he needs money to live on and that the other technicians would get sick pay but that he would get nothing even though he was fit for work (p48).[24]The respondent did pay the claimant for 27 January 2025 but otherwise did not pay the claimant for the weeks commencing 20 and 27 January 2025.[25]On 2 February 2025, the claimant sent two messages to JG (p53). The first was a request for his contract of employment. The second set out a number of issues that the claimant felt needed resolved; he asks for his contract; he asserts that he is in his second year of employment and so does not understand why he has to accrue holidays; he states that he has been fit for work for the past two weeks but has not been paid and that the respondent was unlawfully held back his wages. There was no response to these messages.[26]On 3 February 2025, the claimant sent a message to JG resigning from his employment with the respondent.[27]Section 13 of the Employment Rights Act 1996 (ERA) provides that an employer shall not make a deduction from a worker’s wages unless this is authorised by statute, a provision in the worker’s contract or by the previous written consent of the worker.[28]In terms of s13(3) ERA, a deduction of wages arises in circumstances where the total amount of wages paid by an employer to a worker on any occasion is less than the total amount of wages properly payable on that occasion.[29]The co-dependence principle that no work means no pay is not one that applies in the context of modern employment law. If an employee is willing to work and available to do so but is prevented from doing so due to some form of unavoidable impediment which is not their fault then the employer is not relieved of their duty to pay the employee. This is subject to the terms of the contract of employment in which parties can agree circumstances in which payment is not due (Miles v Wakefield Metropolitan District Council [1987] IRLR 193 HL; Beveridge v KLM UK Ltd [2000] IRLR 765 EAT).[30]In the present case, the claimant was willing to work and available to do so in the period from 20 January 2025 until he resigned on 3 February 2025. The fact that he did not work on those days was due to an unavoidable impediment, that is, that he was unable to get to the sites at which he was to work because he did not drive and the other employees of the respondent who would normally drive him were absent from work.[31]For the reasons set out above, the Tribunal does not accept that there was any agreement between the claimant and the respondent that he would not be paid in such circumstances. Rather, the agreement in place was that the respondent would provide a driver in such circumstances, if necessary an employee of another business operated by the directors of the respondent. For reasons that were not explained by the respondent in evidence no such driver was provided.[32]However, this does not relieve the respondent of the duty to pay the claimant when he was very clearly ready and willing to work. The respondent has, therefore, unlawfully deducted the claimant’s wages when they did not pay him for the period from 20 January 2025 until his resignation (with the exception of 27 January 2025).[33]The amount of the deduction is £1392 calculated as follows. There was a total of 10 days from 20 January to 3 February (including 3 February) for which the claimant was not paid. This amounts to two working weeks. The claimant was paid £696 a week gross and the Tribunal has used this figure to calculate the award as it will be subject to tax.[34]A submission was made on behalf of the respondent that a reduction of 25% should be made to the award because the claimant did not raise a grievance and so failed to comply with the ACAS Code of Practice. The Tribunal disagrees with this submission; the claimant’s message to JG at p53 is clearly a grievance even if it does not use that word. The claimant sets out a number of issues which he is seeking to resolve and it is difficult to see any basis on which it could realistically be said that this is not a grievance.[35]It is, in fact, the respondent who has failed to comply with the ACAS Code. The respondent made no reply to this message at all; JG asserted that the other director replied but there was no evidence of what, if any, reply was made. There was certainly no evidence of the respondent engaging with the claimant’s grievance in terms which satisfied the ACAS Code. There was no explanation why the respondent did not engage with the grievance and the Tribunal considers that the failure was wholly unreasonable.[36]The Tribunal considers that there should, therefore, be an increase to the award to be made to the claimant. Given the wholesale and unreasonable failure by the respondent to engage with the grievance, the Tribunal considers that a 25% increase is appropriate.[37]The Tribunal has considered whether there is any basis for this to be reduced to a lower percentage (including the relative value of the increase against the value of the claim). However, there is nothing that persuades the Tribunal that 25% is not appropriate.[38]In these circumstances, the Tribunal awards the claimant £1740 (One thousand seven hundred and forty pounds) in respect of the unlawful deduction of wages.[39]Given that the Tribunal has found in the claimant’s favour in respect of his wages claim then the power to make an additional award under section 38 of the Employment Act 2002 applies.[40]Section 38 of the Employment Rights 2002 provides that where the Tribunal finds in favour of a claimant in respect of proceedings listed in Schedule 5 of the Act and the Tribunal finds that the employer was in breach of its duties under section 1(1) or 4(1) of the Employment Rights Act 1996 then the Tribunal must increase the award to the claimant by a sum equivalent to two weeks’ wages and can increase the award by a sum equivalent to four weeks’ wages.[41]Section 1 of the 1996 Act states that an employer must give an employee a written statement setting out specific information about their terms and conditions of employment.[42]The question for the Tribunal is whether the respondent failed in their obligation to provide the claimant with a statement of written terms and conditions which complied with s1 ERA.[43]For the reasons set out above, the Tribunal prefers the evidence of the claimant that he was not provided with the document at pp29-44 or any other document which complies with s1 ERA.[44]In these circumstances, the Tribunal finds that the respondent had failed in their duties under section 1 of the Employment Rights Act 1996 and so will make an award under section 38 of the Employment Act 2002.[45]The Tribunal considered the amount of award to be made. This was a wholesale failure by the employer; they simply did not issue a document to the claimant that meet the legal requirements placed on them. The relevant statutory provisions state that the Tribunal must (emphasis added) make an award equivalent to two weeks’ wages in such circumstances. The question is whether this should be increased to four weeks’ wages. The Tribunal agrees with the submission made on behalf of the respondent that it would not be just and equitable to increase the award to four weeks’ wages. If the award was increased then it would mean that the claimant was receiving an “additional” award that was twice as much as the primary award and that would not be just and equitable.[46]The Tribunal used the claimant’s wages after tax (£540 per week) to calculate the additional award because this award to not subject to tax. The Tribunal makes an additional award under s38 of the Employment Act 2002 of £1080 (One thousand and eighty pounds).