Claimant v SBC Empire Ltd — 2022

The tribunal dismissed the unfair dismissal claim because the claimant had not accrued two years' continuous service. Before evidence, the tribunal raised a possible sexual orientation discrimination amendment discussed in correspondence, but the claimant did not apply to amend the ET1, so that issue was not pursued. The case therefore proceeded only on the pleaded claims in the ET1.

The tribunal found that the claimant worked as a chef at Oscars Bar and Kitchen in Shawlands from 6 September 2021 until dismissal without notice on 24 December 2021. He was paid a salary of £33,800 per annum, equivalent to a weekly salary of £650 and about £13.54 per hour. The tribunal found that he repeatedly asked for written terms and conditions, that no written statement was ever issued, that he took no holiday during employment, and that the respondent agreed he would be paid overtime and could offset hours below 48 in some weeks against hours above 48.

On remedy, the tribunal awarded £650 gross for notice pay, £1,345.54 for accrued holiday pay, £1,851.60 for unpaid overtime as an unlawful deduction from wages, and £2,176 under section 38 of the Employment Act 2002 for failure to provide written particulars. In calculating holiday pay, it applied the Working Time Regulations 1998 and included regular overtime in the normal week's pay, referring to Bear Scotland v Fulton and East of England Ambulance Service NHS Trust v Flowers. The tribunal accepted the claimant's time records and found 136.75 overtime hours in the recorded period. The total award was £6,023.14.