Mr Maninder Singh v First Stop (Wombourne Common Road) Ltd: 1301376/2017

EMPLOYMENT TRIBUNALS

Case No 1301376/2017

Between

Mr Maninder SinghClaimant

First Stop (Wombourne Common Road) LtdRespondent

Before

Employment Judge Flood

In person for claimant

Not represented for respondent

Date 19 April 2018

JUDGMENT

[1]The claimant’s complaint of constructive unfair dismissal is well founded and succeeds. The claimant is awarded the sum of £6371.38 in respect thereof.

[2]The respondent has made an unauthorised deduction from the claimant's wages (including accrued but untaken holiday entitlement) and is ordered to pay the claimant the sum of £3333.

REASONS

[1]The Claimant brought a complaint of unfair dismissal contrary to section 94 of the Employment Rights Act 1996 (“ERA”) and a complaint of unlawful deduction of wages in relation to non payment of wages and holiday pay under section 23 of the ERA.

[2]A bundle of documents had been prepared by the Claimant (“the Bundle”) and the claimant had prepared a witness statement and attended to give evidence today. The respondent did not attend the hearing. Attempts were made to contact the respondent by telephone by the clerk. The hearing had been previously postponed due to the ill health of one of the directors of the respondent and had been rescheduled. I decided that it would not be in the interests of justice for any further postponements to be made and that the respondent had received notification of the hearing and had opportunity to attend. Therefore the hearing proceeded in the absence of any appearance from the respondent.

[3]The hearing proceeded and I delivered oral judgment on the day. The claimant requested written reasons for the decision, which are hereby provided.

[4]The claimant had the able assistance of an interpreter during the hearing as English is not his first language.

The Issues

[5]I discussed the issues with the claimant at the outset and these broadly were: 5.1. Did any conduct by the respondent amount to a fundamental breach of contract? In particular, were any of the following matters a fundamental breach of contract: 5.1.1. The continual delay in paying wages and non payment of wages for February; 5.1.2. The allegation of missing stock made against the claimant? 5.2. Did the claimant resign, because of any such act or omission (or series of acts or omissions) by the respondent? 5.3. If so, had the claimant affirmed the contract following the breach by delaying too long in resigning? 5.4. If there was a constructive dismissal: 5.4.1. has the respondent shown the reason for dismissal? 5.4.2. if so, was it a potentially fair one? 5.4.3. if so, has the respondent otherwise acted reasonably? 5.5. If there was a constructive dismissal, did the claimant’s conduct in any way contribute to or cause this constructive dismissal?

Findings of Fact

[6]The claimant gave evidence himself. I have also considered the relevant parts of the Bundle, being those documents pointed out to me by the claimant during the course of his evidence and referred to in his witness statement. Having considered the evidence raised, I make the following findings of fact: 6.1. The respondent is a family run business consisting of a convenience store/supermarket, which is run and managed by four family members, Tajinder Singh (known as Andy), Gurmeet Singh (known as Tony), Harkesh Kaur and Balbir Kaur. 6.2. The claimant started working for the respondent in July 2014 and his role was that of sales assistant. His duties included cash handling, managing orders, cleaning the shop and reporting enquiries to management. The claimant worked long hours at the store – sometimes 6 days a week for 10 hours each day and he often worked overtime including Sundays. 6.3. The claimant was never issued with a written contract of employment or any statement of terms and conditions of employment or particulars. He was employed at the rate of the applicable minimum wage and was not initially given any entitlement to holidays or paid holiday pay. He was not paid for any days he took as holiday and if a day was taken, he would have to work an additional day instead, usually a Sunday. He was only paid for days actually worked. 6.4. This changed in March 2016 when he started to receive holiday entitlement and pay. He was informed he was eligible to take 5.6 weeks holiday per year. 6.5. From the commencement of his employment, the respondent was usually late in paying the claimant’s wages. His first pay cheque bounced and the next was delayed by some months. There was generally a day of at least a couple of weeks before he was paid for the preceding month. 6.6. The claimant was not happy with these delays but things reached a head when in December 2016 there was a 5-6 week delay in paying his wages – they were finally paid on 3 February 2017 as shown in the bank statement on page 132 of the Bundle. He was not paid his January pay until 8 March and his February pay had also not been paid. The claimant was finding it increasingly difficult to manage his household expenses. He reached the conclusion some time around 18 March 2017 that he was no longer able to tolerate the non payment of his wages and he decided to resign. He informed the respondent around the 18/19 March 2017 of his decision, telephoning both Balbir Kaur and Tajinder Singh to inform them of his decision explaining that he was unhappy with the nonpayment of his wages. He informed the respondent that he would work until 31 March 2017. 6.7. During this conversation, Tajinder Singh said to the claimant that the till at the shop was short and implied that the claimant was somehow to blame for this. The claimant denied this at the time and continues to deny any wrongdoing. No formal allegations of any alleged misconduct were ever put to the claimant. There were then some discussions between the claimant and various members of management by telephone and also the Staff Whatsapp group where the claimant asked several times for his outstanding wages to be paid. The claimant was then removed from the Whatsapp group and Gurmeet Singh repeated the allegation arounding missing stock on the Whatsapp group. 6.8. At some stage after this, Balbir Kaur made some attempts to persuade the claimant to stay in his employment but the claimant confirmed that he had provided the two weeks notice as required and his employment would terminate on 31 March 2017. He was then informed by Balbir Kaur that he would not get a good reference if he left, and by Gurmeet Singh that he would not pay his outstanding wages and the claimant would have to take him to court. 6.9. The claimant was not paid for February or March 2017 despite asking for this on many occasions. He sent an e mail on 3 April 2017 which is referred to at page 27 of the Bundle to which no reply was received and with the help of the Citizens Advice also wrote on 4 April 2017 (page 28 of the Bundle) requesting his wages to be paid. He was told that he would not be paid his outstanding wages and that when the claimant said he would go to court to enforce his rights, he was told he could do so if he wanted and that he would be given the money in court. 6.10. The claimant contacted ACAS to commence conciliation as required and during discussions with ACAS the respondent provided to ACAS two payslips for February and March 2017 which are shown at pages 87 and 88 of the Bundle. The claimant accepts that the payslip for February 2017 shows the correct amount he was owed i.e £1473.24 but that the payslip for March 2017 (including accrued but untaken holiday pay for the 2016-17 holiday year) was incorrect – it indicated that he was owed £1683.68 when in fact he was owed £1859.76 as more hours were worked than indicated. I preferred the evidence of the claimant on this issue than the contentions made by the respondent. The claimant was meticulous in recording his hours as shown by the records he kept (pages 34-48 of the Bundle) The claimant was never paid the amounts specified in the payslips provided by the respondent or any other amounts. 6.11. The respondent entered into discussions with the claimant after commencement of proceedings about the correct amount of holiday pay that was due to the claimant. It alleges that the claimant was paid correct holiday for the years 2014-15 and 2015-16 and that in fact he was overpaid holiday pay for the holiday year 2016-17 – see e mail to the Employment Tribunal dated 26 July 2017. I find that the claimant was not paid any holiday pay for the holiday years 2014-15 or 2015-16 but that he was paid holiday pay during the holiday year 2016-17. He was not however paid for the accrued but untaken holiday for this holiday year as at the date of termination of his employment. 6.12. The claimant immediately started to look for work once he had left the respondent and obtained employment in May 2017. Evidence of his attempts to find alternative work are shown at pages 69-71 of the Bundle. He worked from 2 May 2017 until the end of September for a car parts manufacturer at the hourly rate of £7.67 per hour (plus overtime). This job ended at the end of September and he was then out of work for a further 5 weeks. He is now working on a self-employed basis as an Amazon delivery driver, again earning in excess of what was earned with the respondent. A schedule of loss was produced relating to the Claimant’s alleged losses and shown in the Bundle. The claimant updated this and sent this to the Tribunal and the respondent following the initially postponed hearing. 6.13. The claimant also made an application for a costs order and he claims in his schedule of loss in respect of legal expenses incurred. This legal advice was obtained and paid for by the claimant in November 2017 and was in order to find out what the merits of his claim were and how to progress the litigation.

The Law

[7]Section 94 of the ERA sets out the right not to be unfairly dismissed and Section 95 (1) (c) of the ERA says that an employee is taken to have been dismissed by his employer if the employee terminates his contract of employment (with or without notice) in the circumstances in which he is entitled to terminate if not notice by reason of the employer’s conduct i.e constructive dismissal.

[8]If the dismissal is established then the Tribunal must also consider the fairness of the dismissal under Section 98 of the ERA. This requires the employer to show the reason for the dismissal (i.e: the reason why the employer breached the contract of employment) and that it is a potentially fair reason under sections 98(1) and

(2) and where the employer has established a potentially fair reason then the Tribunal will consider the fairness of the dismissal under section 98 (4), that is: 8.1. did the employer act reasonably or unreasonably in treating it as a sufficient reason for dismissal; and 8.2. was it fair bearing in mind equity and the merits of the case.

[9]It was established in the case of Western Excavating (ECC) Limited v Sharp

[1978] IRLR 27

that the employer’s conduct which can give rise to a constructive dismissal must involve a “significant breach of contract going to the root of the contract of employment”, sometimes referred to as a repudiatory breach. Therefore, to claim constructive dismissal, the employee must show:- 9.1. that there was a fundamental breach by the employer; 9.2. that the employer’s breach caused the employee to resign; 9.3. that the employee did not delay too long before resigning, thus affirming the contract of employment.

[10]Section 13 of the ERA provides that a worker has the right not to suffer unauthorised deductions from their wages. Section 23 ERA provides a right for a worker to present a complaint to Employment Tribunal that their employer has made an unlawful deduction from their wages, contrary to section 13.

[11]Section 1 of the ERA provides that where an employee begins employment “the employer shall give to the employee a written statement of particulars of employment” and that this “shall be given not later than two months after the beginning of employment”.

[12]If an employer fails to provide such a statement, a complaint can be brought under section 12 (3) of the ERA. In addition under section 38 of the Employment Act 2002 (“EA”) if an Employment Tribunal makes a finding in favour of an employee in a number of specified claims (including for unfair dismissal and unlawful deduction of wages) and makes an award to the employee in respect of those claims, and in so doing finds that the employer was in breach of its section 1 ERA duty when the proceedings were begun “the tribunal must…increase the award by the minimum amount [2 week’s pay] and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount [4 week’s pay] instead”. This does not apply if there are “exceptional circumstances which would make an award or increase…..unjust or inequitable”.

Conclusion

[13]I heard submissions from Mrs Kumari on behalf of the claimant.

[14]Dealing with the questions I posed at the outset, I have concluded that the ongoing and continual delay and subsequent non payment of wages for February 2017 was a fundamental breach of the claimant’s contact of employment. The claimant had been subject to delays in payment of wages throughout his employment but his December pay was 5 weeks late and he had not been paid for January until early March 2017, similarly 5 weeks late. His February pay had not been paid at the time he took his decision to resign around 18 March 2017. Pay for work carried out is perhaps the most fundamental term of the contract of employment and a continual failure to comply with this term in a timely manner or at all goes to the heart of the contractual relationship.

[15]The unspecified allegations of missing stock against the claimant I also find to be a breach of the implied term of trust and confidence inherent in the claimant’s contract of employment and that such breach was a fundamental breach. No formal allegations were put to the claimant and the matter was only raised when the claimant started to chase for payment of his wages.

[16]When considering whether the claimant resigned, because of any such act or omission (or series of acts or omissions) I find that the claimant did resign in response to the first fundamental breach of contract, namely the continual delay and non payment of his wages. His evidence was clear that he was finding it increasingly difficult to manage his household and the non payment of his wages for February was the last straw that led the claimant to decide that he had to leave and find alternative employment. He did not have a job to go to but still concluded that he could no longer put up with the delays in payment and non payment. When he was then accused of being involved in missing stock, the claimant concluded that he should not rescind his resignation and return to work (as requested by the respondent) but at this stage he had already resigned.

[17]I do not find that there was any delay in resigning which would suggest that any breach had been affirmed. I considered whether the fact that the claimant had suffered delays throughout his employment meant that he accepted this state of affairs but have concluded that this is not the case. He had consistently asked for his wages to be paid on time. It was the excessively long delay for December’s and January’s wages and the nonpayment of February pay, that ultimately led the claimant to resign. At this point, he acted promptly in confirming his resignation to the respondent.

[18]As I had therefore found that there was a constructive dismissal, it was necessary to consider the following questions: 18.1. had the respondent shown the reason for dismissal? 18.2. if so, was it a potentially fair one? 18.3. if so, has the respondent otherwise acted reasonably?

[19]The answer is negative to all of these questions. The respondent has not averred what the reason for any dismissal was other than some vague allegation relating to stock losses that the claimant was responsible for. This does not amount to a fair reason for dismissal and the respondent has not otherwise acted reasonably.

[20]I also considered whether the claimant’s conduct in any way contributed to or caused this constructive dismissal and have concluded that this is not relevant to the situation here - the claimant in no way contributed to his constructive unfair dismissal.

[21]I therefore find that the claimant’s complaint of unfair dismissal succeeds.

[22]In considering the compensation to which the Claimant is entitled to in light of his unfair dismissal, I have calculated this as follows: Basic Award 22.1. The claimant commenced employment in July 2014 and his employment terminated on 31 March 2017. Therefore he has 2 years full service. The claimant was aged 33 when his employment terminated. He is therefore awarded a Basic Award as follows: 2 weeks at £432 per week (60 hours at £7.20 per hour) Basic award £864 No deductions are applicable. Compensatory Award Prescribed element 22.2. The claimant’s weekly gross pay was £432. Deductions were calculated at £77 per week, consisting of £44.00 weekly income tax (based on tax code of 1100L on a non-cumulative basis) and weekly NI of £33.00 (based on NIC table letter A for a non-director). The claimant’s weekly net pay is therefore calculated at £355.00 (equivalent to £1538.33 per month or £18,460.00 per year). 22.3. The claimant was unemployed between 1 April 2017 and 31 May 2017 (4 weeks) amounting to £1420 loss of earnings and between 1 October 2017 and 5 November 2017 (5 weeks) amounting to £1775 loss of earnings. I therefore calculate that the claimant has incurred £3195 in loss of earnings to the date of hearing. This already takes account of earnings in alternative employment between 1 June 2017 and 30 September 2017, where the claimant was paid broadly the same as he was earning with the respondent. No relevant benefits were claimed. There is no Polkey reduction or increase/reduction under section 124A ERA. Lost earnings therefore amount to £3195. 22.4. In respect of the claimant’s complaint that the respondent’s failed to provide a statement of initial employment particulars, I find that there was indeed such a failure. The claimant never received anything in writing from the respondent in respect of his terms and conditions of employment at any time let alone within 2 months of his employment beginning. No written statement of employment particulars was provided as is required under sections 1 and 4 of the ERA. 22.5. As section 38 of the EA also provides that when the Employment Tribunal makes an award to the employee in respect of the claim to which the proceedings relate and when the proceedings begun the employer was in breach of their duty under Section 1(1) or 4(4) of the ERA the Tribunal must, subject to subsection (5) increase by the minimum award and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead. The two amounts concerned are two weeks or four weeks pay. The Tribunal is obliged, therefore, to make such an award, whether applied for or not, unless there are exceptional circumstances. In this case, I do not consider there are exceptional circumstances, 22.6. I am exercising my discretion to increase the award therefore by 4 week’s pay amounting to £1728. There was a complete and abject failure on the respondent’s behalf to comply with its section 1 ERA obligations and the claimant was left with no information as to what his employment terms and conditions were. Therefore in my discretion, an increase of the maximum level is appropriate in these circumstances. I therefore add the sum of 4 weeks pay pursuant to section 38 EA 2002 amounting to £1728 to the loss of earnings already calculated. Loss of earnings £3195 Increase in award under section 38 EA £1728 22.7. No adjustments are relevant in respect of a section 207A failure to comply with a relevant code of practice and there was no contributory fault % reduction to be made under section 123(6). Total prescribed element £4923 Non prescribed element 22.8. I have not awarded any amounts for future loss of earnings as the claimant is now employed and earning more than he did when employed at the respondent. However the claimant has incurred expenses of £234.38 in seeking alternative employment and I am awarding the sum of £350 for loss of statutory employment rights Expenses incurred seeking employment £234.38 Loss of statutory employment rights £350 Total non prescribed element £584.38 Total compensatory award £5507.38 Add basic award £864 TOTAL AWARDED FOR UNFAIR DISMISSAL £6371.38

[23]In respect of the claimant’s complaint of non payment of wages I award the claimant the following sums in respect of unpaid wages for February and March 2017. February 2017 £1473.24 March 2017 £1859.76 TOTAL AWARDED FOR UNLAWFUL DEDUCTIONS FROM WAGES £3333

[24]The claimant seems to be claiming two elements which he says relate to unpaid holiday pay. The claimant’s holiday year ran from 1 April to 31 March. 24.1. There is holiday pay accrued but untaken as at the date of termination of his employment for the 2016/7 holiday year which is awarded and has been included in the calculation for the claimant’s unpaid wages for March 2017 set out at paragraph 23 above. 24.2. He also states that he should be paid holiday pay for two previous holiday years from July 2014 until March 2015 and from April 2015 until March 2016. The claimant alleges he did not take any paid holiday during those years as he was informed he would not be paid in respect of it. He was therefore prevented from taking his holiday entitlement for those years. In the time available today and in the absence for any clear legal basis being set out by the claimant for such claims, I am not in a position to make any decision on this particular element of the claimant’s holiday pay claim. 24.3. I asked the claimant to consider what he was claiming on this point, take some advice on the issue and provide me with further particulars of the legal basis of this complaint within 14 days of the date of receipt of the written reasons for this decision. I will then consider this further and endeavor to make a decision on this element of the claimant’s complaint without the need to hold a further hearing.

[25]The claimant has also made a claim for an order to recover his legal costs incurred in November 2017 in the sum of £275.40. As this legal advice was to the claimant on the merits of his claim generally, it does not fall under any of the grounds for awarding costs against the respondent set out in under Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. I therefore declined to make an award of costs in this regard.

Conclusion

[1]The second limb of the claimant’s complaint for accrued holiday pay is also well-founded and succeeds. The respondent is ordered to pay to the claimant the further sum of £2778 in respect of accrued holiday pay. This sum is to be paid gross and the claimant is to be responsible for the payment of any income tax and National Insurance Contributions thereon.

[2]The Claimant’s application for costs against the Respondent is dismissed.

Preliminary matters

[1]The Claimant brought a complaint of unfair dismissal contrary to section 94 of the Employment Rights Act 1996 (“ERA”) and unlawful deduction of wages under section 23 of the ERA.

[2]Both complaints came for hearing on 13 December 2017 and the claimant was successful in his complaints and was awarded the sum of £6371.38 in respect of his unfair dismissal complaint and £3333 in respect of unpaid wages, which included a payment for accrued but untaken holiday pay in the holiday year from April 2017 until the termination of his employment on 31 March 2017. Oral judgment was given on the day of the hearing, and a decision and written reasons dated 15 January 2018 was subsequently promulgated by the Tribunal. 10.1 Judgment – no hearing - rule 60 February 2018

[3]Part of the claimant’s complaint for unpaid wages, also included unpaid holiday pay for two previous holiday years from July 2014 until March 2015 and from April 2015 until March 2016. I made findings of fact at the hearing and accordingly concluded at paragraph 24.2 that the claimant was prevented from taking his holiday entitlement for those years. However in the time available at the hearing and in the absence of this claim being particularised, I was not in a position to make a decision on this element of the claim. The claimant was asked to provided further particulars of this complaint within 14 days if receipt of written reasons the matter would be dealt with on the papers and without the need for a further oral hearing.

[4]The claimant wrote in to the Tribunal on 25 December 2017 stating: “Maninder Singh wants the court to accept his holiday pay request covering the periods 2014-2016. The breakdown is given in the schedule of loss given in the bundle. First Stop failed to provide him with holiday pay by delaying the request by saying it will be given later. Maninder has difficulty in understanding fluent English, therefore his employers thought Maninder will not know who to turn to. The company hid the fact he was entitled to holiday pay”

[5]At the hearing the claimant also made an application for costs under regulation 76(1), Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”) against the respondent. The claimant appeared in person at the hearing, assisted by Mrs Kumari but was not legally represented. The application for costs appeared to relate to some legal advice obtained by the claimant on the merits of his complaint earlier in the proceedings. At the hearing, I asked the claimant to consider whether he was in fact making an application for costs or whether he alternatively wished to make an application for preparation time under the same provision, given that a costs order and a preparation time order may not both be made in favour of the same party in the same proceedings (rule 75(3) of the ET Rules).

[6]The claimant confirmed by e mail received by the Tribunal on 8 January 2017 that he was in fact making an application for costs in the sum of £840. The claimant attached a copy of an invoice dated 19 December 2017 from Davisons Solicitors in Birmingham for this amount with a breakdown as follows: “Advice in conference; further telephone advice, perusal of papers and provision of written advice”

[7]This corresponds with a letter disclosed by the claimant at page 89 -91 of the Bundle which sets out the advice provided by Davisons Solicitors.

[8]The respondent was given the opportunity on 20 March 2018 to comment on these issues raised by the claimant by no later than 28 March 2018. The respondent did not provide any comment. The matter has now come back for consideration before myself on the papers. 10.1 Judgment – no hearing - rule 60 February 2018

The Issues

[9]The issues which needed to be determined were: 9.1. was the Claimant was entitled to any further outstanding holiday pay 9.2. does the information provided by the claimant regarding legal costs fall within any of the circumstances set out in rule 76 of the ET Rules ? and, if so; 9.3. should, in the Tribunal’s discretion, a costs order be made? The Law Holiday Pay Issue

The Law

[10]Regulation 13 (1) of the Working Time Regulations 1998 (“WTR”) provides that: ‘... a worker is entitled to [four weeks’] annual leave in each leave year.’

[11]Regulation 13(9) of the WTR provides: ‘Leave to which a worker is entitled under this regulation may be taken in instalments, but —(a) it may only be taken in the leave year in respect of which it is due, and

(b) it may not be replaced by a payment in lieu except where the worker’s employment is terminated.’ 11. Regulation 16 of the WTR provides: ‘A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under regulation 13, at the rate of a week’s pay in respect of each week of leave.’

[12]Regulation 30 of the WTR provides: (1) A worker may present a complaint to an employment tribunal that his employer— (a) has refused to permit him to exercise any right he has under— (i) regulation …….. 13(1);………… ……(b) has failed to pay him the whole or any part of any amount due to him under regulation ……. 16(1).

[13]Section 23 (4A) of the Employment Rights Act 1996 provides: 10.1 Judgment – no hearing - rule 60 February 2018 An employment tribunal is not (despite subsections (3) and (4)) to consider so much of a complaint brought under this section as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint.

[14]In the case of King v Sash Windows C-214/16 the CJEU held that European law does not allow Member States to exclude the right to paid annual leave or for national measures to provide for the right to paid annual leave of a worker, who was prevented from taking that leave, to be forfeited at the end of a period fixed by those national measures (paragraph 51): “Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave” Costs Application

[15]Regulation 76, Schedule 1 of the ET Rules states:(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success.

(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.

[16]This is a two stage test: a Tribunal has a duty to consider making an order where any of the grounds are made out but a discretion as to whether to actually award costs. Conclusion Holiday Pay Issue

Conclusion

[17]In relation to the claimant’s claim for holiday pay, then I have already made a finding of fact that the claimant was prevented from taking any paid holiday from when he commenced employment in July 2014 until the end of March 2016.

[18]Regulation 13 (9) of the WTR (above) would suggest that the claimant is not entitled to carry forward the entitlement to paid annual leave for those two leave years into the final leave year of his employment. Further Section

[23](4A) of ERA (above) would appear to prevent me from making any award 10.1 Judgment – no hearing - rule 60 February 2018 to the claimant in relation to holiday accrued prior to 21 May 2015 (which is date immediately prior to the two year period ending on the date of presentation of the complaint). 19. However, applying the conclusions of the CJEU in King v Sash Windows (above) I am satisfied that this is a case where the claimant has been prevented from taking paid holiday due to the denial of that right by his employer. Accordingly I find that these limiting provisions need to be disapplied and that the Claimant is entitled to the outstanding holiday pay that has accrued but remains untaken for the duration of his employment. As this case relates to rights of the claimant under the Working Time Directive 1998 (“the Directive”) and not additional rights to paid annual leave conferred under the WTR, this only applies in respect of the 20 days so called EU leave and not the 5.6 weeks leave to which he would otherwise be entitled to under the WTR. 20. The Schedule of Loss contained in the Bundle states that during the period from July 2014 to March 2015 the claimant worked on average 60 hours per week and was paid at the rate of £6.50 an hour, making his weekly pay £390. It further states that from 1 April 2015 until 31 March 2016, the claimant worked again on average 60 hours per week and was paid at the rate of £6.70 an hour, making his weekly pay £402 during this period. I was unable to accept in entirety the figures provided by the claimant for holiday pay claimed as these were based on the 5.6 weeks holiday provided for under the WTR whereas this decision is made in relation to the 4 weeks holiday entitlement under the Directive. 21. However using the figures for weekly pay set out above, I have calculated his outstanding holiday pay entitlement as follows:(1) For the period from 1 July 2014 until 31 March 2015 (40 weeks): 15 days holiday (3 weeks) at £6.50 per hour with an average weekly working time of 60 hours entitles him to £1170 in outstanding holiday pay for that holiday year.

(2) For the period 1 April 2015 until 31 March 2017 (52 weeks) 20 days holiday (4 weeks) at £6.70 per hour with an average weekly working time of 60 hours entitles him to £1608 in outstanding holiday pay for that holiday year The total additional holiday pay entitlement is therefore £2778. Costs Application 22. In my decision with written reasons dated 15 January 2018, I had already concluded that the legal advice provided to the claimant on the merits of his claim generally and does not fall under any of the grounds for awarding costs against the respondent set out in the ET Rules. 10.1 Judgment – no hearing - rule 60 February 2018 23. Having considered the additional information provided by the claimant following the hearing, there is nothing which suggests that this conclusion needs to be adjusted. The respondent played no part in the hearing having failed to attend both an initial hearing (which was postponed) and the rescheduled hearing. It is also correct to say that the initial hearing in this case was postponed on the application of the respondent. I have considered whether either of these circumstances would fall within the matters set out at either rule 76 (1) (a) “(acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted)” or 76 (2) “(where a hearing has been postponed or adjourned on the application of a party )” of the ET Rules.

[24]However the fact remains that the legal advice obtained by the claimant from Davisons solicitor was not in relation to these matters at all but was general advice on the claim, its merits and how to proceed to hearing. Following receipt of this advice, the claimant went on to represent himself at both hearings, very ably assisted by Mrs Kumari. Therefore no legal costs were actually incurred by the claimant as a result of the postponement of the hearing or the failure of the respondent to participate in the hearing itself.

[25]It is unnecessary for me to go on to consider the second issue, namely whether it is appropriate to make an order for costs. In light of my conclusions above, it would clearly not be appropriate for me to exercise my discretion in this way.