Claimant v Mr Robert Silver Ortiz Rosas
Outcome
Individual claims
The tribunal found on the balance of probabilities that the First Respondent did not make the alleged racist remarks calling the Claimant 'shit from Lima'. Even if the words had been used, they would not have related to race as defined in the Equality Act, being a comment about regional origin within Peru rather than about race, colour, ethnicity, nationality or national origins.
The tribunal found the Claimant was underpaid by £145.98 gross for June 2024. He worked 188 hours at the national minimum wage of £11.44 per hour, entitling him to £2,150.72 gross, but was only paid £1,974.09 gross. The Respondent was not entitled to make deductions for utility bills as there was no written agreement.
The Respondent frankly accepted that written particulars of employment were not provided to the Claimant at the start of or during his employment. This was an oversight. The tribunal was required to award the minimum of two weeks' pay under Section 38 of the Employment Act 2002 as there were no exceptional circumstances.
The claim for breach of contract in respect of notice pay was dismissed as it was not pursued at the hearing.
Facts
A Peruvian sous-chef was employed at a Peruvian restaurant in London from May to June 2024. His employment was sponsored for visa purposes. He resigned without notice after approximately six weeks, citing poor treatment by the Head Chef (also Peruvian). The Claimant alleged he was repeatedly called derogatory names relating to being from Lima, was underpaid, not provided with written terms, and worked in a hostile environment. The Respondent said the Claimant was difficult, argumentative, dismissed staff without authority, and that the relationship broke down due to personality clashes and disputes over kitchen practices.
Decision
The tribunal dismissed the harassment claim, finding the alleged racist remarks were not proven on the balance of probabilities and would not have related to race even if made. The tribunal upheld claims for unlawful deduction of wages (£145.98 underpayment in June due to National Minimum Wage shortfall) and failure to provide written particulars (awarding the minimum two weeks' pay of £1,075.36). The breach of contract claim was dismissed as not pursued.
Practical note
Regional distinctions within the same country (e.g. being from Lima vs other parts of Peru) do not constitute race discrimination under the Equality Act; employers must ensure salaried workers receive at least the National Minimum Wage for actual hours worked; failure to provide written terms triggers an automatic two-week penalty.
Award breakdown
Award equivalent: 2.4 weeks' gross pay
Legal authorities cited
Statutes
Case details
- Case number
- 6007949/2024
- Decision date
- 30 December 2025
- Hearing type
- full merits
- Hearing days
- 2
- Classification
- contested
Respondent
- Sector
- hospitality
- Represented
- Yes
- Rep type
- in house
Employment details
- Role
- sous chef
- Salary band
- £25,000–£30,000
- Service
- 1 months
Claimant representation
- Represented
- No