By Krystal Yan
This is a recent case that we have defended in which the Claimant sought circa £140,000 for unlawful and wrongful dismissal against our client, the Respondent.
Background
The Claimant started working as a kitchen helper for the Respondent from August 2015. In December 2018, the Claimant’s job title was changed to chef assistant and the Respondent started to pay the Claimant £12.20 per hour including service charge payments and tips (“S&T”), which includes £3.20 per hour of S&T.
The Respondent was closed from April 2022 to August 2022 for a major renovation and officially reopened on 1 September 2022. The director of the company messaged the Claimant three times to ask whether he was available to start work from 16 August 2022, even though the restaurant officially reopened on 1 September 2022. The Claimant did not reply saying whether he would return to work at the time requested, but rather that he was on holiday and would revert to the Respondent when he was back. There was no communication between parties until 30 September 2022.
The Claimant issued a P45 which was available for viewing online on 1 October 2022 and it was then that the Claimant realised that his employment had been terminated since 1 September 2022. The Claimant took the Respondent to Employment Tribunals on January 2023 on the grounds of wrongful and unlawful dismissal, which was heard on 30 May and 31 May 2023.
The claim was made on the below grounds:
1) failure to provide workplace pension scheme;
2) unlawful deductions from wages; and
3) whether the Respondent had dismissed the Claimant
We will analyse each of these claims in succession.
Failure to provide workplace pension scheme
In respect of the ground on the failure to provide a workplace pension scheme, the judge held that because the Claimant was enrolled on the Nest Pensions scheme by the Respondent on 1 August 2016, any claim would have been time-barred. i.e., the Claimant did not bring the action within six years of the date on which he became aware of the Respondent’s failure to make pension contributions on his behalf.
Unlawful deductions from wages
The judge also struck out the Claimant’s claim about unlawful deductions from wages. The Claimant alleged that the Respondent deducted his share of the service charge payments and tips (“S&T”).
It is worth noting that in October 2022, the Claimant and the Respondent had entered into a COT3 agreement mediated by ACAS, in which the Respondent agreed to pay and the Claimant agreed to accept a settlement sum to be paid in full and final settlement of the potential claims on unauthorised deductions from wages, breach of the working time regulations and failure to prove a written statement of terms and conditions of employment.
The Claimant argued that the term “unauthorised deductions from wages” in the COT3 agreement referred to unpaid holiday wages, which is different from the deducted S&T from his wages in this case. The Respondent’s counsel claimed that under the case Henderson v Henderson (1843) 3 Hare 100, 67 ER 313, a party is precluded to raise in subsequent proceedings matters which were not, but could and should have been raised in the earlier proceedings.
The judge took the same view and held that from the COT3 agreement, it stated clearly that the settlement sum is the “final settlement of the potential claims of unauthorised deductions from wages”, in other words, the Claimant shall be precluded from bringing any further action in respect of any dispute in connection therewith. Even if, as the Claimant argued, the two claimed wage deductions were not the same thing, he should have brought an action for the deducted S&T within one month from the date the ACAS certificate was issued. It is clear that the Claimant acted beyond the statutory period. Eventually, the Tribunal decided that it did not have jurisdiction to hear the Claimant’s complaints of unauthorised deductions from wages.
Whether the Respondent had dismissed the Claimant
Another contentious issue in this case was whether the Respondent had dismissed the Claimant. The judge found that the Claimant had stated that he was on holiday when he was repeatedly notified by the Respondent to return to work and the Claimant had never replied to the Respondent as to when he would be able to return to work, nor had he actually returned to work.
Additionally, contrary to his own account, the Claimant stated that he needed the job to earn money, however he did not return to work when asked to do so by the Respondent. As for the P45, the judge held that it was an administrative process, indicating that the Claimant left his job, which cannot be regarded as a proof for dismissal. The Claimant proceeded to accept other jobs whilst not replying to the Respondent’s notice for him to return to work. Therefore, the Tribunal believes that the Claimant was not dismissed by the Respondent. Accordingly, his claims of unfair and wrongful dismissal are not well-founded and are dismissed.
Conclusion
There are some important lessons to learn from this case. First, for any case, especially for the Claimant, they must ensure that it is still within the statutory limitation period before issuing proceedings. Otherwise, there will be a lot of time and costs wasted.
Secondly, the nature of a P45 is merely an administrative process for employees’ departures, rather than a dismissal documents. Nevertheless, when an employer intends to dismiss an employee, it is best to follow the relevant employment legal process, such as giving notice prior to the termination of the employment or paying in lieu of notice, in order to avoid more serious consequences.
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