Mr Krzysztof Rak v Fabicon Limited — 2022

The tribunal found that Mr Rak and Fabicon Limited had an oral arrangement for ad hoc labouring work in October and November 2021. Mr Rak was to be paid £70 per day for an 8-hour day, plus a £5 per day travel allowance, in arrears on Fridays. He worked under the direction of the respondent's staff, had to provide the work personally, could not send a substitute, and was not in business on his own account. The tribunal held that he was a worker engaged by Fabicon Limited under an express oral contract, although it doubted that the mutuality of obligation was strong enough to make him an employee.

The tribunal rejected the respondent's account that Mr Rak had only been engaged personally to valet a private car. It preferred Mr Rak's evidence and the contemporaneous text messages, and found that the working relationship ended with immediate effect on 12 November 2021 after a dispute about paperwork and registration. The tribunal held that Mr Rak was owed wages for 8, 9, 10, 11 and 12 November 2021 and that there had been no written agreement authorising any deduction from wages. It also held that the £5 per day travel allowance was not part of wages for the purposes of the unauthorised deduction claim.

On that basis, the tribunal found an unauthorised deduction from wages contrary to s.13 of the Employment Rights Act 1996 and ordered Fabicon Limited to pay £350 gross, subject to deductions for tax and employee national insurance contributions. It also found that the respondent had failed to provide written employment particulars. Under s.38 of the Employment Act 2002, it awarded two weeks' pay rather than four weeks' pay, taking into account the short length of the relationship and the small size of the respondent.

In calculating the s.38 award, the tribunal found that a week's gross pay was £381.40. That figure comprised £356.40 for the basic day rate, adjusted to the applicable national living wage rate of £8.91 per hour for an 8-hour day over five days, plus £25 for the travel allowance. Two weeks' pay came to £762.80.