Claimant v Fanghh Catering Limited
Outcome
Individual claims
The tribunal found the claimant was paid £6,850 for 776.75 hours worked. After deducting £2,850 for fuel and ULEZ expenses in connection with employment, net receipts were £4,000, equating to £5.15 per hour. This fell below the national minimum wage of £10.18 per hour. The claimant should have been paid £7,907.32 in total, meaning a shortfall of £3,907.32.
The claimant worked 19 weeks as a worker and was entitled to statutory holiday pay. Calculating entitlement at 10 days (19/52 × 28 days), this equated to 2 weeks' pay at £416.17 per week, totaling £832.35. The respondent failed to pay any holiday pay.
The tribunal found the respondent failed to provide written terms of employment as required by statute. The claimant was awarded an uplift of 2 weeks' pay (£832.35) under s38 Employment Act 2002, taking account of the respondent being a small takeaway without HR function.
The tribunal concluded the claimant resigned rather than being dismissed. On 14 May 2023, the claimant texted saying he could not continue due to low wages and asked to be paid more or fired. The respondent replied 'Ok' and the claimant did not return to work. This was treated as a resignation, not a dismissal.
As the tribunal found there was no dismissal but rather resignation, the claim of automatic unfair dismissal under s103A ERA 1996 for making protected disclosures could not succeed.
While the claimant was disabled by autism, the tribunal found the second respondent was not aware of this disability. The respondent's refusal to pay more was purely for commercial reasons (paying staff as little as possible), not because of disability. The minimum wage shortfall was compensated under a different head of claim.
The tribunal found only an initial reaction of amusement when the claimant attended work with a walking stick after an ankle injury. Nothing was actually said linking this to age. Applying Dhaliwal, the tribunal found this did not meet the minimum threshold for unlawful conduct imposing legal liability.
The claim for redundancy pay was struck out for reasons given orally on the first day of hearing. No further detail provided in the judgment.
Facts
The claimant worked as a delivery driver for a takeaway restaurant in Enfield from January to May 2023, delivering food by car. He was paid £8 per hour plus £1 per delivery in cash with no payslips. He worked variable hours averaging around 7.5 hours per day, 6 days per week. After deducting fuel costs (approximately £12.50/day) and ULEZ charges (£12.50/day) which were expenses in connection with employment, his effective hourly rate was £5.15, well below the national minimum wage of £10.18. On 14 May 2023, after previously raising concerns about low wages, the claimant texted the manager saying he could not continue due to low wages and asking to be paid more or fired. The manager replied 'Ok' and the claimant did not return to work.
Decision
The tribunal found the claimant resigned rather than being dismissed, so automatic unfair dismissal claims failed. However, he succeeded on unlawful deduction of wages (failure to pay NMW), failure to provide written terms, and failure to pay holiday pay. The tribunal awarded £3,907.32 for the NMW shortfall, £832.35 for holiday pay, and £832.35 for failure to provide written terms (s38 uplift), totaling £5,572.01. Direct discrimination claims for disability and age failed as the respondent was unaware of his autism and the low pay was for purely commercial reasons. All claims against the second respondent (the manager personally) were dismissed.
Practical note
When calculating whether the national minimum wage has been paid, tribunals must deduct work-related expenses including both fuel and charges like ULEZ where the worker routinely needs to enter the zone for deliveries, not just for commuting, following the broad 'in connection with employment' test in Augustine v Data Cars.
Award breakdown
Legal authorities cited
Statutes
Case details
- Case number
- 2212772/2023
- Decision date
- 15 July 2024
- Hearing type
- full merits
- Hearing days
- 3
- Classification
- contested
Respondent
- Sector
- hospitality
- Represented
- Yes
- Rep type
- lay rep
Employment details
- Role
- Delivery driver
- Service
- 4 months
Claimant representation
- Represented
- No