Mr M Stenner v Bristol Hotspring Limited — 2020

At a preliminary hearing the claimant was found to be an employee of Bristol Hotspring Limited, and the claims against the other two named respondents were dismissed. At the final hearing the tribunal dealt with unpaid annual leave, unlawful deduction claims for National Minimum Wage, commission, bonus and pension contributions, a wrongful dismissal/notice pay claim, a section 38 Employment Act 2002 claim for failure to provide written particulars, and an application for a preparation time order. The tribunal also recorded that the respondent had failed to comply with the ACAS Code when dismissing the claimant.

On the wages claims, the tribunal accepted the respondent's figures for the National Minimum Wage shortfall, annual leave, pension contributions and the August bonus. It held that the claimant's weekly invoices operated like timesheets, so Regulation 9(1)(b) of the NMW Regulations 2015 applied. The tribunal also upheld the commission claim and ordered £313.00, finding that the commission rules and matrix governed entitlement and that the claimant was entitled to the ordered amount on the issues it resolved in his favour.

The tribunal rejected the Holmes-related bonus challenge because the Goldmine record showed the order had been cancelled. It also rejected the further Hysa commission challenge, finding that the claimant had already been paid the amount properly payable on the facts it accepted. The awards in paragraph 1 of the judgment were increased by 20% under section 207A TULRCA 1992, producing a total of £8,431.25.

The wrongful dismissal claim failed. The tribunal found, on the balance of probabilities, that the respondent had proved the gross misconduct allegation relating to the Goldmine alteration and was entitled to dismiss without notice. Separately, it awarded the claimant four weeks' gross pay, £2,093.60, under section 38 of the Employment Act 2002 for failure to provide written particulars of employment, and later made a preparation time order of £4,364.25 under Rules 76 and 79 after finding the respondent had acted unreasonably in disputing employee status.