EMPLOYMENT TRIBUNALS (SCOTLAND) Case no 4105479/2020 (V) Held by means of the Cloud Video Platform on 4, and April 2022 Employment Judge W A Meiklejohn Tribunal Member Mr J McElwee Tribunal Member Mr G McKay Mr T Foley v Represented by: Mr S Smith - Solicitor Mr P Sarkar t/a Innovate from Zero — 2022

At a preliminary stage, the tribunal refused the respondent's late application to add Connect-In Ltd as an additional respondent and held that the unsigned settlement agreement did not prevent the hearing from going ahead. Two earlier claims had already been withdrawn: an automatic unfair dismissal claim for protected disclosure under section 103A ERA 1996 and a detriment claim about enforcing the right to NMW.

On the remaining protected-disclosure detriment claim under section 47B ERA 1996, the tribunal accepted that the claimant's 5 May 2020 email disclosed information about errors in the P60 and payslips and that he reasonably believed this tended to show a failure to comply with a legal obligation to report income accurately to HMRC. It held, however, that his belief that the disclosure was made in the public interest was not reasonably held, because this was a single employee's dispute about his own pay and tax position rather than a matter attracting whistleblowing protection. The detriment claim therefore failed.

On pay, the tribunal found that the claimant was engaged in salaried hours work, with the agreed basic hours being 15 per week or 60 per month. It preferred the respondent's evidence on the agreed hours and held that the salary of £510 per month was sufficient to meet NMW until 31 March 2020, but not after the NMW rate rose to £8.72 from 1 April 2020. The underpayment for the period from 1 April 2020 to 15 May 2020 was £19.80. The tribunal also found that 4 days of holiday remained untaken at termination and awarded £94.15 for holiday pay.

The respondent accepted that no compliant written statement of employment particulars had been provided, so the tribunal made a section 38 Employment Act 2002 award of four weeks' pay, amounting to £470.76. It also upheld the itemised pay statement claim in part, finding that payslips for August 2019 to February 2020 inclusive were not effectively given because they were password-protected, and that the May 2020 payslip was not accessible after the claimant lost access to the email account to which it was sent. The tribunal made declarations to that effect but held that section 11(3) ERA 1996 prevented it from deciding whether the amounts stated in the payslips were accurate. The monetary awards totalled £584.71, and the respondent was entitled to deduct the £200 already paid when complying with the payment orders.