Mr D Lewis v Pulse Marketplace UK Ltd: 8002274/2025
JUDGMENT
[1]The claim for unfair dismissal succeeds and the respondent must pay the claimant £13,797.35 including a statutory uplift of 25% for failure to abide by the ACAS Code of Practice on Disciplinary and Grievance Procedures.[2]The claims for unlawful deduction from wages succeeds and the respondent must pay the claimant £72,111.16 in unpaid wages from September 2023 to June 2025.[3]The claim for outstanding holiday pay accrued but untaken at the time of the termination succeeds and the respondent must pay the claimant £3,176.88.[4]In total, the respondent must pay the claimant £89,085.39[1]Following a request by the Claimant on 23 December 2025 for the written reasons of the Tribunal, the following is the Judgment of the Tribunal.[2]The Respondent was not represented and did not attend. The Claimant represented himself and attended in person. He provided a bundle of documents which was referred to during the hearing. The Claimant gave evidence on oath. Facts[3]The Claimant started to work for the Respondent shortly after they were set up. He commenced working for them on 1 January 2021 as their Chief Marketing Officer. The role was agreed to be 1 day per week, although the work was spread over the week, meaning that the Claimant fitted in the work, calls and meetings around his other employment.[4]At the beginning of the relationship the Claimant agreed to work for what was referred to as ‘sweat equity’ whereby those working for the company earn shares in the company. The three founding Directors started to be paid a salary after an investment was received in late 2021, whilst the Claimant remained on a sweat equity basis.[5]During a conversation in December 2021 with Michael O’Shea the managing director of the company, the Claimant agreed that he should receive a salary too, as the others had received both equity and salary. This was set out in Mr O’Shea’s email to the Claimant on 20 December 2021.[6]On 28 April 2021 Mr O’Shea on behalf of the Respondent, agreed that the Claimant’s salary would be £29,500 per annum for his 1 day per week role. It was agreed that this would be paid over 9 months of the year, rather than 12 months. No written contract was provided and no conversation was entered into about notice period or holiday entitlement or other terms of employment. The Claimant assumed that he would receive a 3 month notice period in line with the seniority of the position, or at least the statutory minimum.[7]Initially the Claimant was paid his salary via payroll, receiving payslips and bank transfer of money each month. It was agreed in October 22 that there would be a 3 month ‘holiday’ due to a lack of funds, which would be repaid later. Payments recommenced in January 2023, but again in March 2023 it was agreed another ‘holiday’ would have to be taken. Again, on the understanding that it would be repaid when the company had the cash to do so. The Claimant was due to start to be paid again from 1 June 2023. However, no payments were then made.[8]The Claimant wrote to Mr O’Shea on 7 July 2023 to complain about the lack of payment. This is shortly after the June pay cycle ought to have provided him with a monthly sum. His email outlined that he had worked for 6 months with no pay and that he wanted clarity. Mr O’Shea replied to the Claimant after his return from holiday, to say that he would look into options on how to pay the Claimant. The Claimant was clear that sweat equity would not be an acceptable offer, due to the tax implications for him.[9]By December 2023 the Claimant had been removed from the company website and he wrote to Mr O’Shea once again, indicating his disappointment at the lack of communication around his remuneration. The Claimant said that he wanted to be clear and wanted a reply in writing by 22 January 2024. Mr O’Shea replied to say that they would find a resolution in January.[10]An email dated 15 January 2024 from Mr O’Shea indicated that he had spoken to the Claimant and was going to propose an equity option scheme. The Claimant’s response to that was to say clearly that he had not received any salary since 1 March 2023 and there were repayments due from late 2022. He said he wanted a formal agreement for unpaid salary and remuneration moving forward as he could no longer rely on Mr O’Shea’s verbal assurances.[11]By late January 2024 Mr O’Shea was telling the Claimant that he was close to having an offer to make and was awaiting tax advice. In fact it took until 18 March 2024 for Mr O’Shea to send the Claimant a draft agreement. The Claimant asked if this document was also meant to address the unpaid salary, but he received no response from Mr O’Shea either questioning or denying that unpaid salary was owed. Nor did he assert that the Claimant’s employment was being terminated.[12]The draft agreement was a consultancy contract, which specified that it held no employment status. This was one of the reasons that the Claimant did not accept the offer, together with the caveat that share options may never be offered.[13]The negotiations over the draft consultancy agreement continued into April 2024, where, on 4 April the Claimant asked Mr O’Shea whether he was asking him to change his employment status from employee to consultant (selfemployed). Mr O’Shea did not respond to this email to confirm or deny that it would have the result of ending the employment status of the Claimant. Further discussions took place and the Claimant once again outlined his position on 9 April 2024. He asked for payment in full of all monies owed to him for salary. He received no written reply, nor any payment.[14]On 14 May 2024 Mr O’Shea sent the Claimant an updated proposal, which did not reference any repayment of the monies owed.[15]During this period the Claimant continued to work 1 day per week for the Respondent, putting in the same effort as he had been since the beginning of the job.[16]The negotiations continued; on 26 August the Claimant set out again in an email, his position. He also asked for interest to be paid on the missing salary which he had not received.[17]The Respondent then changed the offer in January 2025, when Mr O’Shea sent an ESOP (Employee Stock Ownership Plan) agreement to the Claimant on 20 January 25. This was an offer to acquire employee shares and included terms about what would happen when the Claimant left the employment of the company. The Claimant responded to this on 14 February 2025 to say that he had been advised that he was not eligible for ESOP as he did not commit 75% of his time to the company which was a requirement to participate in an ESOP scheme. Mr O’Shea said in an email dated 24 February that the advice in Ireland was different.[18]On 17 March 2025 the Claimant sent both Mr O’Shea and the finance department, 4 invoices for work he had done but not been paid for. This was the first time the Claimant had ever written an invoice for his time/work. He did so in order to have written evidence of the money owed to him and so any potential investor in the business would be aware of the debt owed by the Respondent to him. At that time he was claiming 93,200 euros. The Claimant received no reply to this email, so sent a reminder on 17 April 2025 and a final demand letter on 21 May 2025.[19]On 4 June 2025, Mr O’Shea wrote to the Claimant to say that his claims for unpaid salary were not recognised and to say that he was removed from payroll in March 2022. Mr O’Shea said that at no point since then had the company ever indicated that” it would pay you wages or settle any invoice for your services.” The email ended with “As the company is considering its next commercial steps, we no longer require your services and as you are now threatening legal action, I will only communicate with you in writing going forward”. The Claimant understood this to mean dismissal of his employment.[20]During June 2025 he wrote to Mr O’Shea to try to resolve the matter amicably, but was unable to do so, so commenced these proceedings.[21]The Tribunal was told that the company is on the verge of a new rescue package which would dilute the Claimant’s shareholding, but would rescue the company from collapse.[22]The Claimant told the Tribunal and it was accepted that he had neither looked for further employment nor carried out any other work on the 1 day per week that he used to work for the Respondent. He has committed himself to his other, 4 day per week job.[23]The Tribunal heard no evidence from the Respondent, who had requested a postponement of this hearing on 28 November 2025, suggesting they had only just found out about these proceedings. That application was refused and at the beginning of the hearing as the Tribunal considered whether the hearing should proceed in the absence of a representative from the Respondent. The Tribunal considered it in the interest of justice to proceed and heard the Claimant’s evidence. The law[24]The claims asserted by the Claimant were Unfair Dismissal, Unlawful deduction from wages, outstanding holiday pay at the time of dismissal.[25]S.13 ERA 1996 provides that an employer shall not make a deduction from wages of a worker so employed unless the deduction is required or authorised by statute, or by a provision in the workers contract advised in writing, or by the worker’s prior written consent.[26]Holiday pay is payable under Regulation 13, 13A and 14 Working Time Regulations 1998 where the employee is terminated during the leave year, the remaining accrued but untaken holiday shall be paid in lieu.[27]S.94 and 98 ERA set out that an employee has the right not to be unfairly dismissed. It is set out that the potentially fair reasons for dismissal are capability, misconduct, redundancy or some other substantial reason. Where the Respondent fails to prove the reason for dismissal, this will be taken to be an unfair dismissal.[28]Under s98(4) where the employer fails to act reasonably in treating the reason as a sufficient reason for dismissing the employee, the dismissal will be held to be unfair. Equity and the merits of the case should be taken into account in the decision making.[29]Compensation under s.118 and 123 ERA set out the award of damages where the Tribunal finds unfair dismissal. Decision status[30]The Tribunal took account of the Respondent’s offer to the Claimant to join an ESOP scheme indicate and concluded that at the time of the offer in January 2025, the Respondent believed that the Claimant was an eligible employee. If the Claimant had stopped being an employee in March 2022, as the Respondent has since alleged, then it would be inconsistent that they would have made this offer.[31]Mr O’Shea’s email on 4 June 2025 where he said that at no point since March 2022 had the company indicated it would pay the Claimant wages, was obviously incorrect. The Claimant was able to show the Tribunal a payslip dated April 2022 by which was paid, including PAYE. The Claimant also provided extracts from the Respondent’s finances which showed payments to him (which he accepted he received) in May- Sept 2022 and Jan – Feb 2023. All of these were paid via payroll with PAYE deducted. Unlawful deduction from wages[32]The Tribunal found that the Claimant was an employee of the Respondent from 1 January 2021. He was paid on the payroll from April 2021, a monthly gross amount of £3,277.78.[33]The Claimant’s ET1 was issued on 19 September 2025. The Tribunal has the power to award unpaid wages up to 2 years prior to the date of the ET1. The Tribunal found that from September 2023 onward there was no agreement by the Claimant that the Respondent should withhold his salary. Nor was there any agreement to end the employment and replace with any other type of contractual relationship. Some were discussed, but never agreed.[34]On the basis that the Claimant was not paid anything since March 2023, he is owed 22 months of gross salary £3,277.78 x 22 = £72,111.16 Dismissal[35]The Claimant was dismissed without reason other than “we no longer require your services”. This was not a potentially fair reason, as no redundancy process was followed. No process was followed and no notice period provided.[36]The Claimant was therefore entitled to:a. Basic award – £567.30 x 1.5 x 3 = £2552.85;b. Notice pay – it was reasonable to assume that the Claimant would have been given 1 months’ notice in a senior position;c. 1 x net pay £2123.90 = £2123.90; andd. Compensation from date of dismissal to date of hearing.[37]The Tribunal took into account the Claimant’s failure to attempt to mitigate his loss. He admitted that he had not taken steps to find other work. The Tribunal had no evidence of whether he would have been able to find other work for 1 day per week at his level. The Tribunal assessed that it would allow 50% of the loss, i.e. that there was a fair balanced chance that the Claimant would have been able to find something in the period if he had looked. 4 June 2025 – 5 December 2025 = 6 months x £2123.90 x 50% = £6,371.70 Loss of Statutory rights[38]It will take the Claimant 2 years to regain his statutory rights with any other employer. He was therefore awarded £500 to reflect this loss. Uplift for failure to carry out any kind of process.[39]The Tribunal considered that the Respondent failed to carry out any aspect of the ACAS code on disciplinary procedures. He was not given any notice of the charges against him, no opportunity to put forward his position, nor any right to an appeal. The Tribunal considered this to be an egregious failure to follow the procedure and awarded 25% uplift on damages for unfair dismissal, on both the basic and compensatory award. £8998.60 x 25% = £11,244.50 Holiday pay outstanding at time of dismissal[40]The Tribunal understood and accepted the Claimant’s gross earning to be (29500 / 52 = 567.30 per day)[41]The Tribunal accepted that at the time of the hearing the Claimant was entitled to pro rata holidays to reflect his 1 day per week contract. 28 x 0.2 = 5.6 days per annum = £3,176.88. This sum was owed as no payment was made on termination[42]The total amount payable by the Respondent to the Claimant is £89,085.39