Ajantha Samaranayake v T G Ram Limited — 2024

The tribunal found that Ajantha Samaranayake was an employee of T G Ram Limited, not merely a worker. It accepted that the parties had agreed a permanent role on a six-month probation, paid at £36,000 per year in monthly instalments, for three days per week with 28 days' annual leave. Although no written contract had been issued, the tribunal relied on the oral evidence, contemporaneous emails, pension enrolment and other documents, and preferred the claimant's evidence over Mr Tilvar's inconsistent account.

On dismissal, the tribunal held that the claimant was dismissed on 12 September 2022 for asserting statutory rights. It found that the 9 September 2022 email, together with the earlier 5 and 7 September exchanges, showed the claimant was complaining about August pay, holiday pay and the lack of written particulars. The tribunal rejected the respondent's case that the dismissal was for poor performance, and found that the performance explanation was not supported by contemporaneous evidence. It therefore upheld the automatic unfair dismissal claim under s.104 ERA 1996.

The tribunal also upheld the wage claims. It found an unlawful deduction of £3,000 gross for August 2022 salary, because the claimant was entitled to monthly pay and there was no agreement to withhold that month's wages. It separately upheld the holiday pay claim and calculated a gross balance of £1,077.52 after allowing for the amount already paid on the September 2022 payslip. The tribunal further found a breach of s.1 ERA 1996 for failure to provide written particulars and awarded £2,284 gross, being four weeks' pay under s.38 of the Employment Act 2002.

For wrongful dismissal, the tribunal held that the claimant was entitled to one week's notice under s.86 ERA 1996 and that no notice had been paid. It rejected the evidence that the parties had mutually agreed that notice was unnecessary, and awarded £692.31 gross. On the unfair dismissal remedy, the tribunal assessed past loss of earnings at £13,520 net, pension loss at £405.60 and applied a 25% ACAS uplift of £3,481.40, producing a compensatory award of £17,407 net. The Employment Protection (Recoupment of Benefits) Regulations 1996 applied, the prescribed element was £17,407, and the total award was £24,460.83 with a balance of £7,053.83 before recoupment.