IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
ATLANTIQUE SEAFOOD T/A SOY SUSHI RESTAURANT
Reference:  TRE 121
Hearing Date: 5
H G Griffin, Chairman
For the Claimant: Mrs
A Bielanska-Stone, Lexstone Lawyers
For the Respondent: Mr
& Mrs V Gomes, Directors
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 Claimant’s case as formulated in his
By a claim form presented on 18 August 2018, the
Claimant brought the following complaints:
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
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")
The Respondent defended the Claims.
3. The Tribunal
was required to consider the following issues:
a) What were the
Claimant’s contractual hours?
Did the Claimant habitually work in excess of
his contractual hours?
If he did habitually work in excess of his
contractual hours, did the Claimant take time off in lieu (“TOIL”)
those excess hours?
If not, was the Claimant’s failure to
take TOIL due to the Respondent’s refusal to agree to his requests?
Was the Respondent required to pay the Claimant in
lieu of untaken TOIL upon the termination of the Claimant’s employment?
Unpaid Wages Claim
On the balance of probabilities, were the
working conditions in the kitchen so poor as to entitle the Claimant to refuse
to attend work?
If so, was the Claimant entitled to receive
payment for hours which he did not work because of such working conditions?
Documents and evidence
4. I received
witness statements and evidence under oath from each of the following
a) the Claimant;
b) XY (a former
employee of the Respondent); and
c) Victor Gomes,
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
7. The Claimant provided
a joint file of documents in accordance with the Tribunal’s Orders.
8. Both parties made
their arguments by way of oral submissions.
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.
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
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.
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:
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.”
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.
The Contract did not contain any formal procedure for
the working of overtime or for the taking of TOIL.
The Claimant gave evidence that:
his regular hours were 49 hours per week, equating
to four hours of overtime every week;
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’;
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;
even when the restaurant was quiet, he was still
required to attend work on his normal shift (of 49 hours) in case there was
no-one ever instructed him to take his accrued
he never took any TOIL during the period of his
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.
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.
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).
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.
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:
there were days (throughout the year) when the Claimant
worked long hours; and
there were days (particularly during winter) on
which there were few orders (and sometimes no orders at all).
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
“23:00 you finish, how can you do 45 hours
when is like that most every week lol nothing different they not gonna
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
“… 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?
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.
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.”
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.
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.
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
The Respondent rejected the assertion that the
working conditions were a danger to health. Mr Gomes gave evidence that:
he provided a large and a small fan in the kitchen;
all four of the windows were opened in the kitchen;
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
the staff who worked joked that the working
conditions in the kitchen were better than when the extractor fans were in
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.
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.
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:
the Claimant should not have walked out of his
shift without informing them;
the Claimant should have turned on the fans which
were provided; and
Mr Gomes and the Head Chef believed that the
kitchen was cooler than normal.
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
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
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
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
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.
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:
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;
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
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
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
the Claimant was not entitled to refuse to work during that period and his
Unpaid Wages Claim fails.
Mrs H G Griffin, Chairman