J Acosta v Fuegos del Sur Ltd: 8003177/2025
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s claim of unlawful deductions from wages fails and is dismissed.REASONS
[1]The claimant presented a claim to the Employment Tribunal on 23 December 2025, in which he complained that he had been unlawfully deprived of holiday pay, arrears of pay and other payments.[2]The respondent submitted an ET3 in which they resisted the claimant’s claims.[3]A Hearing was set down to take place on 5 May 2026 at the Employment Tribunal, Edinburgh. Shortly before the Hearing, on 1 May 2025, the respondent submitted a request to convert the Hearing into a Hybrid Hearing, so as to avoid the need for their representative to travel. In the absence of any explanation as to why such an application was made so close to the Final Hearing, the application was refused. ETZ4(WR)[4]The claimant appeared on his own behalf at the Hearing, and the respondent was represented by Mr Jones, litigation consultant.[5]The claimant presented a Bundle of Documents to the Hearing, to which reference was made. It was difficult to use this Bundle in the initial stages, as the pages were not numbered. When it became obvious that the Hearing was becoming unmanageable, I adjourned in order to allow the bundles to be properly numbered. The respondent did not produce any Documents.[6]At the outset of the Hearing, it became apparent that the respondent had made some payments to the claimant, and that the amount under dispute was smaller than had originally been pled. The parties were given the opportunity to discuss the matter in advance of the Hearing, but were unable to reach any agreement.[7]The claimant gave evidence on his own behalf, and the respondent called Sebastian Garrizo.[8]The Hearing was very brief. The Tribunal was able to find the following facts admitted or proved, based on the evidence led and information provided. Findings in Fact[9]The claimant, who was 38 years of age when the Hearing took place, commenced employment with the respondent as a manager on 1 August 2025. His employment ended on 13 September 2025. 10.The claimant’s role was to manage 2 restaurants, owned and operated by the respondent. 11.He was provided with a contract of employment (53ff) in respect of his position as Manager. His primary place of work was at La Querencia, 29 Crighton Place, Edinburgh EH7 4NY, though he could occasionally be required to work at 37 Moira Terrace, Edinburgh EH7 6TD. 12.The contract provided that he would commence employment with the respondent on 1 August 2025, and would be paid £14.50 per hour, paid monthly, together with a share of tips. He signed the contract on 1 August, and the respondent signed, in the person of Ariadni M A Sionta, on 15 July 2025. 13.In addition to this contract, the claimant maintained that he reached an agreement with Ms Sionta to carry out work helping to remodel the bar area of La Querencia. His evidence was that he would be paid £15 per hour in respect of that work. He maintained that she changed her mind when he completed the work. This contract was entirely verbal. 14.The claimant was not challenged in cross-examination by the respondent that he was not due the final sum of £697.64 which he claimed was outstanding; nor did Ms Sionta give evidence to contradict the claimant’s assertion that there was a separate contract in relation to the remodelling work. 15.Mr Garrizo’s evidence was very short, and he simply confirmed, in chief, that the claimant’s employment with the company began on 1 August 2025, referring to the contract of employment. However, when he was asked by the claimant in cross-examination as to why he was paid the sum of £250 on 6 August 2025, he advised that it was Ms Sionta who knew about that other matter, and therefore she would know more about it than he did. Although he subsequently suggested that the claimant had not done any work in the restaurant prior to 1 August 2025, his evidence lacked any reliability or weight, on the basis that he had no direct knowledge of the matter, leaving the running of the business to his partner. 16.There were a number of email exchanges between the claimant and the respondent (98/9) in which there was a disagreement between the parties as to expenses relating to the remodelling work and due to the claimant. 17.The claimant produced payslips issued on 31 August and 30 September 2025 respectively (97). 18.On 31 August 2025, the respondent paid the claimant the net sum of £3,350.79. This was made up of gross pay (210 hours at £14.50 per hour) of £3,045, together with tips amounting to £506.03. These payments were subject to the deduction of National Insurance contributions. 19.On 30 September 2025, the respondent paid the claimant the net sum of £2,140.24. This was made up of gross pay (145.68 hours at £14.50 per hour) of £2,112.36, together with tips amounting to £122,86. These payments were subject to the deduction of National Insurance contributions. 20.The claimant listed the payments which he had received from the respondent, against the dates on which he received them: 26 August - £257.22 2 September - £1,522 11 September - £300 15 September - £550 22 September - £350 Cash (no date) - £100 5 November - £271.57 15 November - £237.50 24 November - £237.50 4 December - £237.50 3 February (2026) - £234.77 9 March - £234.77 7 April - £469.54 1 May - £605.55 21.The total sums received by the claimant therefore amounted to £5,607.92. 22.The total sum sought by the claimant is set out in the decision section below. 23.The difference sought by the claimant is £697.64 (113). Discussion and Decision 24.As indicated above, the claimant accepted that he had received a number of payments on the dates set out in paragraph 20 from the respondent, but that the sum of £697.64 remained outstanding, and this is the award which he seeks. 25.The respondent’s submission was remarkably brief. They simply argued that the respondent had discharged the burden of making all due payments between 1 August 2025 to 13 September 2025, but that any other payments (which were not defined) would fall outwith the Tribunal’s jurisdiction, being time-barred. The sums sought were also outwith the claimant’s contract of employment. 26.The claimant’s claim amounts to the difference between the payments he claims were due to him by the respondent under contract and the payments actually made. 27.The respondent’s primary defence appeared to be that the claims, having been paid anyway, were presented out of time. I address this first. 28.The claimant’s employment came to an end on 13 September 2025; his claim was presented on 23 December 2025, which was outwith the 3 month statutory time limit for presenting such a claim. However, the ACAS Early Conciliation Certificate, which was not produced by either party but is available in the Tribunal’s own administrative file, shows that the claimant notified ACAS of the claim on 31 October 2025, and that the Certificate was issued on 12 December 2025. Accordingly, the claimant benefits from the extension of time in the Early Conciliation process, and in my judgment, his claim was not out of time in relation to his ongoing salary payments. 29.The respondent argues, however, that any claim relating to payments which should have been made in July 2025 were out of time, and this is correct. The Tribunal therefore has to determine whether or not it was not reasonably practicable for the claimant to have presented such a claim in time, and if not, then whether the claim was presented within such further time as the Tribunal regards as reasonable. 30.It is perfectly clear that the claimant was, through his employment and shortly after its ending, attempting to resolve his outstanding complaints about payments with the respondent. He succeeded, to some extent, in those complaints, as he received a number of payments (as paragraph 20 above demonstrates) over the succeeding months. 31.It is recognised that this is a strict test, and that the Tribunal should essentially consider whether it was not reasonably feasible for him to have presented his claim. On the one hand, the claimant was able to present a claim to the Tribunal, within the statutory timescale after the termination of his employment, and therefore may be taken to have enough understanding to have done so in relation to the non-payment of sums which were due at the end of July (according to him). 32.On the other hand, the Tribunal still has a discretion to exercise here, in the interests of justice. It appears to me that it would be an affront to the interests of justice to find that it was reasonably practicable for the claimant to have presented a claim to the Tribunal in circumstances where the respondent was plainly continuing to make payments to him. 33.One of the enormous difficulties about this case is the lack of clarity as to what the basis of the payments made by the respondent was. The respondent brought no evidence to this effect. They called one witness who, with the greatest of respect, had nothing to add to the proceedings, and whose questioning in chief was extremely short and unhelpful. 34.Accordingly, it is my judgment that the claimant should not be penalised by a finding that it was reasonably practicable for him to have made a claim to the Tribunal about disputed payments when the respondent was acting in such a way as to suggest that they were willing to make him some, if not all, his claimed payments. 35.In the circumstances, I consider, further, that the claim was presented within such further time as it was reasonable for him to have done so, in light of the respondent’s ongoing payments and therefore their actions, which undoubtedly affected his taking action. 36.I am not therefore prepared to find that the claimant’s claims, or any of them, should be excluded from probation on the grounds that they lack jurisdiction to do so. 37.The respondent clearly admits that the claimant was due certain payments, such as for holiday pay, but there remains a certain lack of clarity about what remains outstanding in precise terms. 38.The claimant argued that he was due the outstanding balance of £400 for remodelling work which he did in July 2025, for expenses incurred during his manager role of £348.78; for overtime of 29 hours in August, of £425; of the total hours worked of £4,176 in August and September, and tips of £628 for those two months; and accrued holiday pay of £623. 39.The respondent accepted that the claimant was due holiday pay, but it is entirely unclear from the evidence whether they are arguing that the claimant’s holiday pay was included within the payments made. 40.It is not clear on what basis the claimant is seeking the recovery of expenses, in an unlawful deductions from wages claim, nor the contractual basis for an overtime claim, since the claimant’s contract of employment was silent on the question of overtime. 41.Further, the remodelling work was carried out by the claimant on the basis of a verbal contract with the respondent’s proprietor. The nature and basis of that contract are entirely unclear. I am unable to discern from the evidence whether there was an intention on the part of both parties to create an employment relationship for the claimant to carry out this work, or if it was intended to be a self-employed capacity in which he was to perform this function. I am prepared to accept that the claimant did agree with the respondent to carry out work in the bar which was different to the work of a manager under his contract of employment, and that that may have been payable at £15 an hour; but it is impossible to go much further than this. 42.More confusion, frankly, is introduced by the claimant’s calculations. His figure for his hours worked in August and September amounts to £4,176. This does not tally with either the gross or net figures shown on the payslips. The gross sums (including tips) amounted to £5786.52, and the deductions for national insurance contributions were £295.22. He said that his hours amounted to 288 for those two months, but in fact he was paid for 355.68 hours. 43.Taking all of these matters into account, I am not persuaded that the claimant’s calculations have been proved to be accurate. It is clear that the claimant was due holiday pay in the sum of £623, which is not denied by the respondent; however, what is not clear is whether he has actually been paid this sum in the figures which have been paid to him. 44.Accordingly, owing to the unclear and unsatisfactory nature of the evidence provided in this case, I am unable to find that, on the balance of probabilities, the claimant has suffered an unlawful deduction from his wages. 45.The claimant’s claim therefore fails, and is dismissed.