EMPLOYMENT TRIBUNALS (SCOTLAND) Case no: 4100326/2020 (A) Held via telephone conference call on August 2020 Employment Judge: W A Meiklejohn Mr W Tabakh v Represented by: Ms L Campbell Solicitor Giza Catering Ltd — 2020

The claimant worked for Giza Catering Ltd as a waiter at the Giza restaurant in Dundee from 22 July 2019 to 9 September 2019. He was paid at an agreed rate of £7.70 per hour and kept his own record of hours worked, which the tribunal accepted. The respondent did not submit an ET3 or take part in the hearing, and the tribunal heard evidence from the claimant alone and found him credible.

On the evidence accepted by the tribunal, the claimant worked 382.5 hours across the period of employment and received no payment from the respondent. The tribunal held that this amounted to an unlawful deduction of wages in the gross sum of £2,945.25. It also found that the respondent's failure to pay wages was a material breach of contract, that the claimant was entitled to terminate without notice, and that he was treated as dismissed under section 95(1)(c) ERA 1996. For that breach of contract claim, the claimant was awarded one week's gross pay of £420.73 in lieu of notice.

The tribunal further found that the claimant had not been given a written statement of particulars of employment when proceedings began. Because the tribunal was making an award on the related proceedings and the respondent had been in breach of section 1(1) ERA 1996, section 38(3) Employment Act 2002 applied. The tribunal awarded the higher amount of four weeks' pay, £1,682.92, and found that there were no exceptional circumstances making that unjust or inequitable. The gross sums of £2,945.25 and £420.73 were ordered to be paid subject to deduction of the appropriate income tax and National Insurance contributions.