Case 3302205/2022 · Employment Tribunal
(1) David Kerry Davies (2) Pamela Rustem (3) Ken Jacobie v Abatis (UK) Ltd (Creditors Voluntary Liquidation) and 1 other — 2024
- Case reference
- 3302205/2022
- Decision date
- 6 August 2024
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Annand Representation
- Venue
- Watford
Parties
3 namedClaimant
(1) David Kerry Davies (2) Pamela Rustem (3) Ken Jacobie
Key findings
Tribunal's reasoningThe Tribunal found that Mr Davies, Ms Rustem and Mr Jacobie were employees of the First Respondent, and therefore also workers, before the date from which the First Respondent had accepted employee status. Mr Davies was found to have been employed from July 2011, Ms Rustem from September 2014, and Mr Jacobie from January 2017, with employment ending when the company entered creditors' voluntary liquidation on 23 July 2021.
In reaching those findings, the Tribunal considered the working arrangements as a whole and found mutuality of obligation, personal performance and control. It accepted that each Claimant worked on the understanding that a salary would be paid when the company could afford it, and that later PAYE arrangements did not mark the start of employee status. The Tribunal also relied on factors including integration into the business, approval and reporting arrangements, expenses and professional costs being paid, and the nature of the commission arrangements.
The redundancy payment claims were upheld because each Claimant had more than two years' continuous employment and the First Respondent accepted those claims were in time. The Tribunal calculated redundancy pay using a 40-hour week at the National Minimum Wage rate of £8.91, awarding £5,346.00 to Mr Davies, £3,207.60 to Ms Rustem and £2,138.40 to Mr Jacobie.
The claims for unauthorised deductions from wages, holiday pay under the Working Time Regulations, and breach of contract for notice pay were dismissed as out of time. The Tribunal found it had been reasonably practicable to bring those claims within the relevant time limits because the Claimants had received legal or other assistance before the limitation dates and were aware of the relevant rights. The Tribunal also awarded each Claimant two weeks' pay under section 38 of the Employment Act 2002 because the First Respondent had not provided written particulars of employment.
Claims and outcomes
5 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Redundancy | The Tribunal found all three Claimants were employees for more than two years and awarded statutory redundancy payments of £5,346.00 to Mr Davies, £3,207.60 to Ms Rustem, and £2,138.40 to Mr Jacobie. | Upheld | — | £10,692 |
| Unlawful deduction from wages | The unauthorised deduction from wages complaints, including National Minimum Wage, pension contribution, and holiday payment allegations, were dismissed as out of time. | Dismissed | — | — |
| Holiday pay | The holiday pay claims under the Working Time Regulations were dismissed as out of time. | Dismissed | — | — |
| Breach of contract | The breach of contract claim concerning statutory notice pay was dismissed as out of time. | Dismissed | — | — |
| Other | The Tribunal made a section 38 Employment Act 2002 award for failure to provide written particulars of employment, awarding two weeks' pay of £712.80 to each Claimant. | Upheld | — | £2,138 |
Remedy
Monetary award- Total award
- £12,830
- across all upheld claims
Legal tests applied
18 references- section 230 Employment Rights Act 1996
- mixed test
- irreducible minimum
- mutuality of obligation
- personal performance
- control
- Autoclenz Ltd v Belcher
- Uber BV v Aslam
- Ready Mixed Concrete test
- Hall v Lorimer
- Clark v Clark Construction Initiatives Ltd
- Neufeld
- section 23 Employment Rights Act 1996
- Regulation 30 Working Time Regulations 1998
- Article 7 Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994
- reasonably practicable test
- section 164 Employment Rights Act 1996
- section 38 Employment Act 2002
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.
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