Date: February 2018 Sent to parties: February 2018 I EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: S/41 00575/201 Held in Glasgow on 8, 9, and May and and October 2017 Employment Judge: Mrs M Kearns (sitting alone) Mr L Fuyal v Represented by: Mr M Allison Solicitor Mr Rahul Randev and Mr Pravesh Randevt/a The Eagle Lodge — 2017

The claimant worked as a chef for the respondents from 6 February 2012 until late October 2015. The tribunal rejected the respondents’ illegality argument, finding that although there had been issues about how pay and tips were processed, the claimant did not know of or knowingly participate in any deception of HMRC. It also found that, for the period February to April 2012 when he was paid in cash net, he did not know that tax and National Insurance had not been remitted.

The tribunal accepted the claimant’s evidence that he normally worked about 55 hours per week while being paid for 40 hours, and that he was under pressure when, on 29 September 2015, he signed the ILR undertaking in order to obtain a factual letter needed for his immigration application. It found that the figures said to be owed by him, including the £4,200 referred to in the undertaking, were not properly vouched and that the respondents had not shown they had incurred those costs for the claimant in the way alleged. The tribunal considered the refusal of two days’ leave in October 2015, but found that this point alone did not amount to a breach of the implied term; it was part of the wider background.

The decisive breach was the non-payment of wages. The tribunal found that the claimant was last paid on 12 October 2015, that he then worked a further two weeks without pay, and that Mr Randev deliberately withheld wages without explanation and did not return the claimant’s calls. Applying s.95(1)(c) ERA 1996 and the implied term of mutual trust and confidence discussed in Malik v BCCI and Woods v WM Car Services, the tribunal held that the cumulative conduct, including the pressured signing of the ILR undertaking and the wage withholding, destroyed trust and confidence. It found that the claimant resigned on or about 25 October 2015 in response to those breaches, not earlier on 11 October 2015, and that the dismissal was unfair because no potentially fair reason under s.98 ERA 1996 was advanced.

On remedy, the tribunal corrected the basic award to £1,106 and assessed the compensatory award at £4,152 under s.123(1) ERA 1996, made up of past net loss and loss of statutory rights. It also awarded £1,471 for untaken holiday and £1,929 for unlawful deductions from wages, including arrears of pay and the National Minimum Wage shortfall from October 2013 until the claimant’s last paid period. The separate overtime-pay claim failed because the tribunal found no express or implied contractual basis for overtime pay.