IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

ARTUR SUMERA

CLAIMANT

 

AND

 

 

ATLANTIQUE SEAFOOD T/A SOY SUSHI RESTAURANT

RESPONDENT

 


 

TRIBUNAL JUDGMENT


 

 

Reference:                 [2018] TRE 121

 

Hearing Date:                5 February 2019           

 

Before:                          Mrs H G Griffin, Chairman

 

Appearance:

 

For the Claimant:           Mrs A Bielanska-Stone, Lexstone Lawyers

For the Respondent:     Mr & Mrs V Gomes, Directors

                                   

 

THE DECISION

 

The Claimant’s claim that the Respondent should pay for untaken ‘time off in lieu’ of overtime is rejected.

 

The Claimant’s claim for unpaid wages for a period when he refused to work because of the lack of extractor fans in the kitchen is rejected.

 

 

THE REASONS

 

Background

The Claimant’s case as formulated in his claim form

1.       By a claim form presented on 18 August 2018, the Claimant brought the following complaints:

 

a)       unpaid wages of £3,785.33 relating to untaken time off in lieu of overtime (“TOIL”) allegedly accrued by the Claimant over the entire period of the Claimant's employment between May 2016 and July 2018 ("TOIL Claim"); and

b)      unpaid wages of £315.74 in respect of days on which the Claimant refused to work because of the lack of extractor fans in the kitchen ("Unpaid Wages Claim")

 

(together “Claims”).

 

2.       The Respondent defended the Claims.

 

Issues

 

3.       The Tribunal was required to consider the following issues:

 

Overtime Claim

a)       What were the Claimant’s contractual hours?

b)      Did the Claimant habitually work in excess of his contractual hours?

c)       If he did habitually work in excess of his contractual hours, did the Claimant take time off in lieu (“TOIL”)
of those excess hours? 


d)      If not, was the Claimant’s failure to take TOIL due to the Respondent’s refusal to agree to his requests?

e)      Was the Respondent required to pay the Claimant in lieu of untaken TOIL upon the termination of the Claimant’s employment?

 

Unpaid Wages Claim

f)         On the balance of probabilities, were the working conditions in the kitchen so poor as to entitle the Claimant to refuse to attend work?

g)      If so, was the Claimant entitled to receive payment for hours which he did not work because of such working conditions?

 

Documents and evidence

 

Witness evidence

4.       I received witness statements and evidence under oath from each of the following witnesses:

a)       the Claimant;

b)      XY (a former employee of the Respondent); and

c)       Victor Gomes, Director.

 

 

5.       I also received written witness statements from:

a)       ST (a former employee of the Respondent);

b)      GH (a current employee of the Respondent); and

c)       QR (a current employee of the Respondent).

 

6.       Unfortunately GH's flight back from holiday was cancelled due to fog and GH was unable to attend the Hearing. I explained to Mr and Mrs Gomes (the Respondent’s representatives) that GH's absence would mean that I would be unable to attach significant weight to GH’s witness statement because the Claimant's representative would not be able to cross-examine the witness.  Mr and Mrs Gomes confirmed that they understood this and that they nevertheless wanted the Hearing to proceed in GH's absence.

 

Hearing File

7.       The Claimant provided a joint file of documents in accordance with the Tribunal’s Orders.

 

Submissions

 

8.       Both parties made their arguments by way of oral submissions.

 

Evidence

9.       I considered all of the evidence (both written and oral) provided by each of the witnesses.  I only summarise in this judgment the facts and evidence which are relevant to the issues.  Where I have had to resolve factual disputes, I have done so on the balance of probabilities on the basis of my assessment of the credibility of the witnesses and the consistency of their accounts with the rest of the evidence, including the documentary evidence.

 

TOIL Claim

 

10.   The Respondent employed the Claimant as a chef (latterly as Sous Chef) between May 2016 and 15 July 2018 when the Claimant resigned having given notice to terminate.  There was no suggestion by the Claimant that he resigned in response to any repudiatory act by the Respondent; he resigned to take up employment elsewhere.

 

11.   The Claimant’s contract of employment (“Contract”) [Tab 5] showed that he worked basic hours of 45 hours per week (from Monday to Saturday) and he was paid £490 per week plus £50 for tips.

 

12.   A clause in the Contract (“Overtime Clause”) stipulated that the Claimant was not entitled to receive payment for overtime worked.  The Overtime Clause provided as follows:

 

“Normal hours of work/Overtime conditions (if any)

45 hours over Monday to Saturday.  There is no paid overtime in your role.  Any time worked in excess of your normal hours of work will be given as time off in lieu.”

 

13.   The Claimant did not dispute the nature of the Overtime Clause.  However he asserted that, having not taken his time off in lieu of overtime (“TOIL”) (see below) the Respondent was obliged to pay him in lieu of his TOIL upon the termination of his employment.

 

14.   The Contract did not contain any formal procedure for the working of overtime or for the taking of TOIL.

 

Claimant’s evidence

15.   The Claimant gave evidence that:

 

a)       his regular hours were 49 hours per week, equating to four hours of overtime every week;   

b)      he never arrived at work after his allocated start time.  Nor did he leave work before his allocated finish time because his shift was ‘predetermined and included overtime’;

c)       periodically (approximately once a month) he asked either the Head Chef or Mr Gomes that he be allowed to take TOIL.  Whenever he asked to take TOIL he was told that the restaurant was ‘too busy’.  The Claimant was unable to provide the dates on which he made such requests;

d)      even when the restaurant was quiet, he was still required to attend work on his normal shift (of 49 hours) in case there was ‘walk-in’ business;

e)      no-one ever instructed him to take his accrued TOIL; and

f)         he never took any TOIL during the period of his employment.

 

16.   In support of the Claimant, XY gave evidence that she had also asked for TOIL on four or five occasions but the restaurant was too busy and there was no cover.  XY gave evidence that she witnessed the Claimant’s request for TOIL being rejected on one occasion.  XY did not provide details of when this rejection occurred.  She gave evidence that the Claimant complained to her about not being able to take TOIL.

 

Respondent’s evidence

17.   The Respondent disputed the Claimant's evidence that he worked a regular 49 hour week.  It also rejected the Claimant’s assertion that he never took TOIL.

 

18.   In his evidence on behalf of the Respondent, Mr Gomes acknowledged that during high season (particularly in July and August) employees were not able to take TOIL because the restaurant was too busy.  However Mr Gomes gave evidence that when the restaurant was less busy he regularly provided cover in the kitchen for all of the chefs (including the Claimant).  He also gave evidence that although the Claimant worked 49 hours on some weeks, he would take TOIL on other occasions, particularly during February and March when the restaurant was generally quieter (although the evidence showed that there were also busy days during March). 

 

19.   Mr Gomes’ evidence was that he believed that the Claimant recovered his TOIL over the course of the year because workflow fluctuated throughout the year and the Claimant went home early on quieter shifts. I noted, however, that Mr Gomes was unable to support this assertion with documentary evidence because there was no formal procedure for the accrual of overtime and the taking of TOIL.

 

20.   Each of the parties referred me to carefully chosen extracts from the Respondent’s bookings diary to support their own evidence [tabs 11 and 12].  This evidence served only to confirm each party’s oral evidence that:

 

a)       there were days (throughout the year) when the Claimant worked long hours; and

b)      there were days (particularly during winter) on which there were few orders (and sometimes no orders at all). 

 

21.   I was also shown copies of text messages between the Claimant and an anonymous member of staff (presumed to be a kitchen porter) [tab 13] which showed that, on the dates of those text messages, the Claimant (or his colleague) worked beyond 10pm.  The Claimant drew my attention in particular to one such text exchange from 3 March 2018 [tab 13 p15] (“Colleague Text Message”) in which the Claimant and his colleague complained about the heavy workload that evening.  The colleague commented to the Claimant:

 

23:00 you finish, how can you do 45 hours when is like that most every week lol nothing different they not gonna change”.

 

22.   The parties also referred me to copies of text messages from 13 and 14 June 2018 between the Claimant and Mr Gomes (“Complaint Text Message”) [Tab 14 P4-6] in which the Claimant complained about low staffing levels in the kitchen that evening.  At the end of his text, the Claimant wrote:

 

“… Rules for one not for all.  I can’t finish early, I can’t start late, I can’t have evening off because is busy and bla bla bla but I can work alone in the busy kitchen?!, and nobody cares about me? …”

 

23.   The Claimant asserted that the above wording in the Complaint Text Message was evidence of an on-going or routine refusal to allow the Claimant to take TOIL. 

 

24.   The Respondent refuted the Claimant’s interpretation of the above wording.  In his evidence, Mr Gomes referred me to the response to the Complaint Text Message [tab 14 p6] which stated:

 

“Good morning Artur, Thank you for your message.  Vic is going in this morning to have a good talk with them because neither of us knew what was happening.  Both chefs CANNOT be off on the same night.”

 

25.   Mr Gomes gave evidence that he understood the entire Complaint Text Message to relate to the Claimant's frustration about poor staffing levels at work that evening. He asserted that his response showed that he took the Claimant’s concerns seriously and that he dealt with the staffing issue immediately. He also questioned why, if the Claimant was angry about lack of TOIL, he had not raised the issue at any stage, either orally or in writing.  Indeed, Mr Gomes asserted that it was only after the termination of the Claimant’s employment that he heard anything from the Claimant relating to his TOIL.

 

Ventilation system

 

26.   On 3 July 2018, the ventilation system in the kitchen broke down. This breakdown was caused by the cleaners power-washing the system.  Mr Gomes immediately tried to arrange for the system to be mended, but Mr Gomes was informed that the system would have to be replaced entirely.  This took three days. 

 

27.   The Claimant and XY gave evidence that, without the extractor fans, the working conditions in the kitchen became very difficult. The Claimant gave evidence that the kitchen was “filled with smoke” and was a “real danger to my health”.  The Claimant also asserted (both in his witness statement and in his oral evidence) that the temperature in the kitchen rose to over 50 degrees Celsius.  I noted, however, that XY confirmed in her evidence that there was no thermometer in the kitchen and that she estimated the temperature to be in the region of 30 degrees Celsius.  I also noted that, during her closing submissions, the Claimant’s representative chose to reiterate XY’s evidence (and not her client’s evidence) in this regard.

 

28.   The Respondent rejected the assertion that the working conditions were a danger to health.  Mr Gomes gave evidence that:

 

a)       he provided a large and a small fan in the kitchen;

b)      all four of the windows were opened in the kitchen;

c)       the fact that the kitchen was open-plan to the restaurant meant that (with the windows open and the fans working) fresh air passed through the kitchen; and

d)      the staff who worked joked that the working conditions in the kitchen were better than when the extractor fans were in operation.

 

29.   The Claimant and XY denied that Mr Gomes provided two fans, claiming that only one fan was provided.  Indeed, the Claimant showed me a photograph of a fan [Tab 13 p1].  The Claimant also denied that there was fresh air in the kitchen.  However, text messages from Mr and Mrs Gomes to the Claimant on 3 and 4 July 2018 [Tab 14 p7 and p8] showed that there were two fans in the kitchen during this period.

 

30.   On 3 July 2018, the Claimant attended his lunchtime shift.  He did not raise any formal or informal complaint about the working conditions with Mr Gomes.  The Claimant was due to work in the evening too, but five minutes before the start of his evening shift, he sent a text message to Mr and Mrs Gomes in which he complained about the conditions at work.  The Claimant stated that he could not breath, it was too hot and that the working conditions caused him to have a nosebleed [Tab 14 p6].  He stated that he would be taking a half-day off in lieu of his bank holidays.

 

31.   The Claimant returned to work the following day (expecting the fans to have been repaired) but, finding that the ventilation system remained out of service, he left midway through his shift at 12:10 and sent a text to Mr and Mrs Gomes at 16:10 in which he complained about the heat and the smoke [Tab 14 p7].  Mr and Mrs Gomes replied [Tab 14 p7], commenting that:

 

a)       the Claimant should not have walked out of his shift without informing them;

b)      the Claimant should have turned on the fans which were provided; and

c)       Mr Gomes and the Head Chef believed that the kitchen was cooler than normal.

 

32.   In his evidence, and in his representative’s closing submissions, the Claimant asserted that he remained on ‘standby’ to return to work once the ventilation system had been repaired.  He asserted that the Respondent had failed to provide him with a safe system of work and that he should receive payment for the days when he was forced not to work because of the lack of ventilation system.

 

Conclusion

 

TOIL Claim

 

33.   Having considered all the evidence, I made the following findings of fact:

 

a)       During the course of his employment, the Claimant rarely took TOIL and he generally worked a 49 hour week.

b)      The Respondent (via the Head Chef, and occasionally Mr Gomes) only allowed TOIL to be taken at times which suited the business.  The Claimant was not permitted to take TOIL when the restaurant was particularly busy.

c)       The Complaint Text Message and the Respondent’s response showed that kitchen staff arranged their own TOIL.  Mr and Mrs Gomes did not monitor their staff overtime and TOIL.  The Respondent’s failure to implement a formal overtime and TOIL policy was unfortunate and should be addressed by the Respondent urgently.  The lack of policy meant that Mr Gomes could not monitor overtime and TOIL and could not ensure that overtime and TOIL were fairly and transparently implemented.  I did not accept Mr Gomes’ assertion that it would be impossible to implement such a policy.

d)      It was the Claimant’s own responsibility to ensure that he took his TOIL.  There was no obligation on the Respondent to ensure that the Claimant took his TOIL.

e)      The evidence did not show the Respondent to have routinely and unreasonably refused to allow the Claimant to take TOIL.  The Claimant’s own evidence was that he only asked for TOIL approximately once a month.  On these facts, I concluded that one refusal per month did not constitute unreasonable behaviour.  Further, whilst the Complaint Text Message served to confirm that there were occasions when the Respondent refused to allow the Claimant to take TOIL, it did not show that those refusals were unreasonable, nor did it show that such refusals happened routinely throughout the Claimant’s employment.  Similarly, the Colleague Text Message only showed that the Claimant worked long hours; it did not show that the Respondent routinely refused to allow the Claimant to take TOIL.

 

34.   I therefore rejected the Claimant’s assertion that the Respondent unreasonably and routinely refused to allow the Claimant to take TOIL.

 

35.   I then considered whether, having failed to take TOIL during his employment, the Claimant was entitled to receive a payment for the untaken TOIL upon the termination of his employment.

 

36.   I considered the case of Vision Events (UK) Ltd v Paterson UKEAT/0015/13 in which the EAT held (by a majority) that, in the absence of an express term in the contract regarding payment on termination of employment, the employment tribunal was wrong to imply a term into the contract that the employee was entitled to be paid for accrued hours that he had not taken off in lieu. A tribunal may not imply a term in order to make a contract ‘fair’.

 

37.   In this case, the Overtime Clause expressly stated that the Claimant was not entitled to receive payment for overtime worked.  The Overtime Clause expressly provided that the Claimant would only be entitled to take TOIL for any overtime worked.  Nowhere does the Contract specify that upon termination (when TOIL can no longer be taken) the Respondent should pay the Claimant for accrued but untaken TOIL. 

 

38.   In accordance with Vision Events, the Tribunal may not imply into the Contract a term which directly contradicts the Overtime Clause.  Unfortunately for the Claimant, the Overtime Clause meant that, with regards to TOIL, the Claimant had to “use it or lose it”.

 

39.   The Unpaid Overtime Claim therefore fails.

 

Unpaid Wages Claim

 

40.   Having assessed all of the evidence, I considered Mr Gomes’ evidence to be more reliable than that of the Claimant and XY.  I therefore made the following findings of fact:

 

a)       the Respondent placed two fans in the kitchen.  Mr Gomes’ evidence that he did so was supported by text messages which Mr and Mrs Gomes sent to the Claimant on 3 and 4 July 2018 [Tab 14 p7 and p8], both of which referred to more than one fan being set up in the kitchen;

b)      the combined effect of four open windows and the open-plan nature of the kitchen and restaurant meant that there was sufficient fresh air in the kitchen for the working environment to be reasonable, both in terms of temperature and in terms of smoke extraction; and

c)       the temperature in the kitchen was not unreasonably hot and the Claimant’s and XY’s evidence was unreliable and inconsistent in this regard.

 

41.   In addition to the above findings of fact, I noted that:

 

a)       there is no legal requirement that an employer maintain a workplace temperature below a specific maximum temperature;

b)      the Claimant’s representative accepted that the obligation on employers is to ensure that workplace temperatures are ‘reasonable’.  The ‘reasonableness’ of the temperature must take account of the type of work being undertaken.  When viewed objectively, one would expect a professional kitchen to be hotter than an office.

c)       XY gave evidence that she found the kitchen hot to work in.  However she continued to work.  There was no evidence to suggest that the other kitchen staff found the working environment to be intolerable.  Everyone except for the Claimant continued to work; there was no ‘mass’ walk-out and no formal complaints in connection with the kitchen’s temperature. 

d)      the Respondent took reasonable steps to mitigate against any discomfort and there was sufficient current of air in the kitchen during this period to ensure that the kitchen remained a safe place of work.

 

42.   I therefore concluded that, on the balance of probabilities, the working conditions remained reasonable in the kitchen while the ventilation system was out of service.

 

43.   Consequently, the Claimant was not entitled to refuse to work during that period and his Unpaid Wages Claim fails.

 

 

Mrs H G Griffin, Chairman                                                    Date:           7 March 2019

 


Page Last Updated: 07 Mar 2019