Case 2400610/2020 · Employment Tribunal
Mr Z Chmielinski v Carter Brothers (Rochdale) Limited — 2020
- Case reference
- 2400610/2020
- Decision date
- 23 December 2020
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Feeney REPRESENTATION
- Venue
- Manchester
Parties
2 namedClaimant
Mr Z Chmielinski
Respondent
Key findings
Tribunal's reasoningThe tribunal found that, although the respondent intended the claimant to work as a contractor after he moved to Poland, the legal relationship remained one of employment. It accepted that he was paid a regular amount, did not invoice, had no separate contractor terms, and was expected to log in and out and provide timesheets. It also held that he was a worker because he had to provide the work personally and was not running a business on his own account.
On the unlawful deductions issues, the holiday pay claim succeeded, but the other heads failed. The tribunal held that the contract gave the directors discretion not to pay for days off, so the £200 deduction linked to emergency family leave did not give rise to an unlawful deduction. It found that the claimant did no work after the 2 December 2019 phone call, so wages from 2 December 2019 to 2 January 2020 were not payable. The claim for office rent and related expenses also failed because there was no agreement or written evidence that the respondent would reimburse them.
On dismissal, the tribunal found that the claimant was dismissed on 13 December 2019 when access was not restored and the respondent maintained that he was in breach of contract. It held the dismissal was unfair because no procedure was followed. Applying Polkey, it found that a fair process would have led to dismissal only a few weeks later and certainly after the notice period, and it also found that the claimant could have been fairly dismissed for the WhatsApp comments about Ms Hargreaves. Contributory conduct was assessed at 50%, and the tribunal recorded that the holiday pay issue might need a remedy hearing; no final monetary award was quantified in the reasons.
Claims and outcomes
5 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Holiday pay | The tribunal found the claimant was entitled to holiday pay for the period from July 2019 to 2 January 2020, subject to any holiday actually taken. The amount was not quantified in the reasons and was left to settlement or a remedy hearing if needed. | Upheld | — | — |
| Unlawful deduction from wages | The claim for wages from 2 December 2019 to 2 January 2020 failed. The tribunal found the claimant did no work after the 2 December 2019 phone call and held the respondent was entitled not to pay him for that period. | Dismissed | — | — |
| Unlawful deduction from wages | The claim for the £200 reduction to the November 2019 payment in respect of emergency family leave failed. The tribunal held the contract allowed directors discretion not to pay for days off and that statutory emergency leave gives a right to time off, not paid leave. | Dismissed | — | — |
| Other | The claim for office rent and related expenses failed. The tribunal found there was no agreement, and no written evidence, that the respondent would reimburse those costs. | Dismissed | — | — |
| Unfair dismissal | The tribunal found the claimant was dismissed on 13 December 2019 when access was not restored and the respondent maintained he was in breach of contract. The dismissal was unfair because no procedure was followed. The tribunal also found the claimant contributed 50% to his dismissal, and said any salary from 13 December 2019 to 2 January 2020 would fall within unfair dismissal compensation rather than unlawful deductions. |
Legal tests applied
26 references- s.230 ERA 1996
- Ready Mix Concrete 1968
- Cotswold Development Construction Limited v Williams 2006
- Bates van Winkelhof v Clyde & Co LLP [2014]
- Byrne Brothers (Formwork) Ltd v Baird [2002]
- Uber v Aslam
- Pimlico Plumbers Limited v Smith
- Chapman v Letheby and Christopher Ltd
- Kirkless MC vs Radecki [2009]
- LTE vs Clarke [1981]
- s.98 ERA 1996
- Abernethy v Mott, Hay & Anderson [1974]
- s.98(4) ERA 1996
- Iceland Frozen Foods Limited v Jones [1982]
- Sainsbury's PLC v Hitt [2003]
- Taylor v OCS Group Limited [2006]
- Polkey v A E Dayton Services Limited [1988]
- s.123(6) ERA 1996
- Nelson v BBC No. 2 [1980]
- Devis v Atkins [1977]
- Mullinger vs DWP [2005]
- s.13 ERA 1996
- s.27 ERA 1996
- New Century Cleaning Company Limited v Church [2000]
- Greg May (Carpet Fitters and Contractors) Ltd v Dring [1990]
- Cleeve Link Limited v Bryla [2014]
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
How we got this data
Case essentials (reference, date, judge, venue, country, claim categories) are extracted from the structured metadata gov.uk publishes alongside each decision. Parties and monetary figures are extracted from the judgment PDF text. Key findings and per-claim outcomes require a second extraction pass that is not yet complete for this case — until then, the primary source linked above is the authoritative record. See full methodology.
Named in this case and want it removed? Submit a takedown request. The page will be withdrawn on receipt and the editor will follow up within five working days.