Mr D McCormick v Beachside Leisure Holidays Ltd: 1401258/2025
JUDGMENT
The judgment of the tribunal is that:- i) The claimant’s claim for unlawful deduction from wages and/or breach of contract in the failure to pay overtime is well founded and upheld. ii) The respondent is ordered to pay the claimant the sum of £2908.50 (144.63 x £20.11).REASONS
[1]By this claim the claimant brings claims of unlawful deduction from wages and/or breach of contract in the failure to pay worked overtime. He originally also brought claims of public interest disclosure detriment which have been withdrawn and dismissed by a judgement dated 4th December 2025. ---1---[2]I have heard evidence from the claimant, and Mr Ben Trenchard for the respondent.[3]Bundles - There are in fact two different bundles of documents. The final one runs to 69 pages in accordance with the case management directions. There is an earlier version which runs to 128 pages, which is also on the tribunal electronic file, but from which a number of documents had been removed in order to create the final bundle. The claimant contended that relevant documents for his claim were included in the larger bundle. Both parties agreed that in reaching my conclusions following the hearing I would look at the documents in both bundles.[4]Decision -The evidence and submissions occupied the full two hours allocated to the hearing and it was agreed that I would provide a written decision, having looked at all of the documents.Background
[5]The claimant was employed as a Head Chef from 15th November 2023. He contends that : i) His contractual working hours were 37.5 per week; ii) His working hours were recorded using the respondents Planday Scheduling and payroll system which required him to clock in and out each day. iii) The figures derived from the Planday system show that he worked hours in excess of his contracted hours and he is entitled to be paid them as overtime.[6]Contractual provisions -The relevant sections of the claimants contract are sections 6 and 7 (extracts from which are set out below):[7]Normal hours of Work You are required to work 1740 hours a year. This is an average working week of 37.5 hours ("your average weekly hours") when your below holiday allowance (which equated to 210 hours per annum) is factored in. These hours will be worked at such times as we may require. Your actual hours of work each week will vary according to the time of year and the requirements of the business. Your actual week hours during the High Season will significantly exceed your hours in the Low Season. You are expected to manage your own time according to operational requirements and as agreed with your line manager from time to time. Your hours each week will need to be recorded on such time and attendance system as the company may specify from time to time(My underlining) . ---2---[8]Overtime During any one year we may require you to work additional hours (overtime) on a temporary or regular basis. If you work more than the annualised hours in the relevant year you will become entitled to be paid overtime for the work that you carry out in excess of such hours. This will be paid at an overtime rate of £20.11 per hour. Any overtime payments will be paid to you as a lump sum at the end of the relevant year. All overtime that you carry out must be expressly approved in advance by management failing which you will not be paid for any work that you do in addition to your normal hours of work.(My underlining )[9]It is not in dispute that in consequence of the contractual provisions set out above that: i) The calculation of overtime was done on an annualised basis and required a calculation of total hours worked as against the annual total; ii) Any overtime worked required authorisation to create an entitlement to be paid for it (although the parties do not agree as to whether authorisation was granted and/or how that issue is to be resolved).[10]The claimants claim is not easy to follow as the amounts sought and the basis of them has fluctuated over time. He has asserted the following claims: i) ET1 -Contracted annual hours 1776 – Actual hours 2238 – 462 hours unpaid - claim £7854.00; ii) Schedule of Loss – The claimant contends that basis of the claim remains the same but the amount claimed was wrong – 462 x £20.11 = £9292.82; iii) Witness Statement - Contractual hours 1950 - Hours worked 2,205.56- Unpaid Hours 255.56 x £21.00 = £5366.76; iv) Updated Schedule – The claimant has supplied an Updated Schedule in which he contends the figures in the witness statement are wrong. The correct figures are Contractual hours – 1740 – Actual hours 2,205.46 – excess hours 462 x £20.11= £9292.82[11]The claimant confirmed that he is relying on the most recent schedule. In fact the latest Schedule is arithmetically incorrect, as 2205.56 – 1740 is 465.56 not 462. It follows that the correct figure is 2205.56 – 1740 = 255.56 x £20.11 = £9362.41. ---3--- Respondents Position[12]The respondent contends that, as is common in the leisure industry, staff worked longer hours in busy periods, and shorter in quiet ones. The contractual requirement was for an average of 37.5 hours per week (clause 6) and that overtime if worked and if expressly approved in advance would be paid at £20.11 per hour. The respondent disputes the hours claimed, and contends that neither of the relevant contractual provisions for the payment of overtime are met, in that firstly the claimant did not consistently clock in or out (clause 6 – underlined passage). In addition overtime must be expressly approved in advance (clause 7 – underlined passage ) and it denies that prior approval was ever sought or granted. Disputes[13]To make the decision comprehensible I have dealt with each issue in dispute separately, as set out below[14]Calculation of Hours Worked – The parties do not agree on the calculation of the hours worked .[15]The respondent has produced a print out of the hours as recorded on the Planday system. This records a total of 1884.63 hours for 2024. However they contend that it does not necessarily follow that these were the hours actually worked by the claimant and may be over recording the hours: i) The claimant is only consistently recorded as clocking in from 12th September 2024; ii) Prior to that he almost never did so despite being specifically reminded of the requirement to do so in a series of emails beginning on 5th April 2024, and repeated in June, July, and August ; and iii) Almost all of the entries without clocking in times were self-approved by the claimant, and in the absence of his clocking in and out there is no way of verifying the accuracy of the figures; iv) There is only one entry which explicitly refers to the hours as overtime during the whole year, which renders the claimant’s contention that he had performed 462 overtime hours extremely improbable; v) The claimant’s own calculation must be treated with considerable scepticism in any event as the hours claimed do not even match those on the Planday records, and there is no evidence as to where the calculation of 2205.86 came from; and vi) It follows that on any analysis there some 321 hours claimed (2205 minus 1884) for which there is no evidential basis at all.[16]The claimant asserts that the Planday records in the bundle are wrong. The documents that were removed from the bundle were his screenshots of the weekly Planday records; and that his calculation is taken from those records, not the print out in the bundle. He stated that he had not gone through the documents to see where the discrepancy lay, but insisted that the document in the bundle must be wrong. The respondent disputed this on the basis that the information is only recorded once in ---4--- the system and there is no possibility that there could be different figures for the same days /shifts. To resolve this it was agreed that I would, after the hearing, and as part of the decision making process compare some of the documents to see if I could identify any discrepancy. To do so I picked six weeks at random: i) w/c 5th January 2024 – The figures in the printout and the screen shots appear to be identical; ii) w/c 9th February 2024 - The figures in the printout and the screen shots appear to be identical; iii) w/c 29th March 2024 - The figures in the printout and the screen shots appear to be identical; iv) w/c 24th May 2024 - The figures in the printout and the screen shots appear to be identical; v) w/c 16th August 2024 - The figures in the printout and the screen shots appear to be identical; vi) w/c 1st November 2024 - The figures in the printout and the screen shots appear to be identical;[17]It follows that I have not been able to identify any discrepancy by comparison with the weeks randomly selected, which is as would be expected as they represent the same records on the same system. It equally follows, that subject to the determination of the issues as to whether they are themselves accurate, I accept that the headline figure of 1884.63 is the correct figure for the assessment of the hours worked.[18]That leaves the question of whether the figure of 1884.63 is an accurate figure. If it is not there is simply no evidence as to the hours actually worked and the claim is at significant risk of failing. There are in my judgment two relevant factors. Firstly it is obviously correct that before September 2024 the claimant very rarely clocked in, but that he did so regularly from 12th September 2024. Secondly the earlier entries appear to correspond to shift patterns, whereas once he claimant began to clock in and out regularly the figures ae more random . By way of example on 12th September 2024 the clocking in and out times are 16.09 and 21.08; and similar slightly random clocking in and out times appear thereafter, whereas they never appear before in the entries that are not accompanied by clocking in and out times. It appears to me to follow automatically that in respect of those entries all that is being recorded is the shift time and not the actual hours worked.[19]The claimant submits that arguments about clocking in and out miss the point. As Head Chef he had to be present when he was required to be there, and he regularly worked longer than his rostered hours. If the Planday system has only recorded the shift times because he has not clocked in or out then the only person likely to suffer is him as the hours are being under-recorded. In addition, throughout his employment ---5--- he was constantly in discussion planning shifts and rotas,; and the respondent has always known the hours he worked. At no time has it ever been suggested that he was not working at least his contracted hours that the issue would not have been dealt with. It must follows that he at least performed the hours recorded on the Planday records, and if he had not it is inconceivable[20]In my judgement the claimant is correct and it follows that I will accept the Planday records as recording hours which were accepted as accurate at the time; and that I will take the figure of 1884.63 as an accurate record of the hours worked.[21]Authorisation – The next issue is authorisation. The respondent submits that clause 7 requires express approval and that there is no documentary evidence, in the form of emails, text messages, social media conversations which supports the contention that there was ever any prior authorisation for any overtime worked; and there is therefore no contractual entitlement to be paid it.[22]This raises a difficult issue. If the hours are annualised it will not be known until the end of the year (subject to the caveats below) whether overtime has or has not been worked. It would appear to follow automatically that it could not be approved in advance as the respondent will not know during any given week whether overtime is actually being worked even if the hours for that week exceed 37.5. Thus, whether any overtime is being worked will not be known until the total worked hours reach 1740 and the holiday entitlement is exhausted. From this point onwards all hours worked would appear to be overtime, and would require express authorisation. It equally follows that unless either the employer or employee keeps a record of overall hours and holiday taken it will not necessarily be known when or whether overtime is being worked at the time it is being carried out. The contractual provisions set out above do not appear to recognise the difficulty this gives for the calculation and/or prior approval of overtime; and in particular does not set out whose responsibility it is to keep the records to identify the point at which overtime is worked. Looked at another way; 1884 – 1740 is just under 4 weeks at 37.5 hours per week. This would mean that very broadly, without express authorisation that the respondent is expecting the claimant to work for nothing for the last four to five weeks of the year.[23]The respondent’s answer to this difficulty is that the contractual provision is entirely clear. Unless there has been express prior authorisation for any hours above1740 there is no entitlement to be paid for those hours. It was the claimant’s responsibility to monitor his own hours pursuant clause 6 and if he did not ask for or obtain express authorisation for overtime that is his responsibility.[24]Although he does not put it quite in this way the claimant’s answer as to how this can be resolved is that all of his hours were authorised, in that he always discussed his rotas with the park managers and that they were at least known or available to be checked. All the hours he worked were necessarily authorised; and it follows that if the total number of hours exceed 1740 then of necessity the overtime hours were authorised. In addition it is apparent that he was entitled to and did authorise his own hours and for large part of the year did not clock in or out. This at least appears to imply that he was of a sufficient level of seniority to authorise his own hours, and if ---6--- this is correct the overtime hours would necessarily be authorised. Again there is nothing in either clause 6 or 7 to identify a specified level of management which would be required to authorise the overtime.Conclusions
[25]As set out above I accept that the figure of 1884.63 hours is an accurate record of the hours worked and is the figure that I will use. In terms of authorisation it is not at all easy to interpret the contractual provisions in the light of the practical difficulties to which they give rise. In my judgement the best analysis is that if hours are authorised, and if in fact the total number of hours worked subsequently exceeds the annualised contractual hours then the right to overtime has accrued.[26]It follows that in my judgement the claimant is in principle correct, but the claim is limited to the difference between 1740 hours and £1884.63; which gives a figure of £2908.50 (144.63 x £20.11).