Mr K Kossakowski v Archie McKinnnon Painter and Decorators Limited — 2023

The claimant, a decorator, agreed a trial arrangement with the respondent on 38 hours per week at £18 per hour, with the possibility of a higher rate after the first week. He started work on 14 November 2022, worked 51.5 hours between 14 and 22 November 2022, and no payment was made for that work.

On 23 November 2022, after asking to be paid at least some wages and saying he was entitled to a written statement of employment particulars, the claimant was told by Archie McKinnon that he could not work with him any longer and was thanked for the work trial. The tribunal found that the reason for dismissal was the claimant's assertion of that statutory right, so the dismissal was automatically unfair under s104 ERA.

The tribunal also found that the claimant had contractual entitlement to £18 per hour for the trial period and that £927 gross was unlawfully deducted because nothing was paid. It found that the respondent had not provided a written statement of particulars under s1 ERA. Because the claimant had no entitlement to a basic award, the tribunal assessed loss on the basis that he found alternative employment on 17 January 2023 after 8 weeks out of work, with a net weekly loss of £535, and awarded £4,280 compensatory compensation.

In addition, the tribunal made a statutory award under s38(3) of the Employment Act 2002 because the respondent was in breach of its duty under s1 ERA when the proceedings began and the claimant succeeded in relevant Schedule 5 claims. The award was two weeks' pay capped at £571 per week, totalling £1,142, and the tribunal said it was not just and equitable to award a higher sum.