Employment Judge G. KingIn person for claimantDate 3 March 2023
JUDGMENT
[1]The Claimant’s claim in respect of unpaid holiday pay is not well founded and is dismissed. JUDGMENT having been sent to the parties on 17 March 2023 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]By a claim form dated 17 September 2022, the Claimant brought a claim in respect of holiday pay.[2]The Tribunal was assisted by a bundle of 90 pages, which included statements from the Claimant and the Respondent. Where pages of the bundle are referred to in these reasons, they are cited in [square brackets]. Facts[3]The Claimant’s claim is that in the holiday year from 1 February 2021 to 31 January 2022, he used only his holiday entitlement of 30 days (24 standard holiday days, plus six days for long service period), plus eight bank holidays. The Respondent agreed that the Claimant’s holiday entitlement is 38 days, or 304 hours.[4]The Claimant is a night shift worker. He works a 48-hour week, working six nights a week. His shift is from 21:30 through to 06:30 the following morning. His working week is Monday to Saturday. What this in effect means is that the Claimant does not work the night between Saturday and Sunday, but works every other night in the week.[5]The Claimant says his first holiday was from 16 August 2021 to 4 September 2021. He calculated this as 16 working days. His second holiday he describes as being from the night of 14 to 15 January 2022 to the night of 30 to 31 January 2022, which he calculates as 14 working days. This, by the Claimant’s calculation, therefore gives a total of 30 working days.[6]The Respondent’s holiday year runs from 1 February to 31 January in the following year.[7]The Respondent says, and is not challenged by the Claimant, that at the beginning of November 2021, the Claimant booked four weeks and one day of leave to be taken during January and February 2022, in order so the Claimant could go to Poland. The Claimant’s holiday request therefore spanned two different holiday years. The actual dates were from the night of 14 to 15 January through to the night of 11 to 12 February. This is confirmed on the Holiday Request Form [50].[8]The Claimant’s second claim is that there was an extra day recorded as “bank holiday” in his holiday record. It transpires that what this actually refers to is the 2 January 2022 which was a day when the Respondent was closed for business. The Respondent says that staff were notified about this in a team talk, and by email on 3 February 2021 (i.e. approximately 11 months before), and told that they would need to take one day’s holiday to cover this business closure day.[9]The Claimant says that the bank holiday dates he was notified of do not align with the dates on the government website (i.e. the actual dates of the bank holidays), and secondly that nine bank holidays were included on his holiday record, not eight. His case, essentially, is that if the business chose to close for a day, that day should be paid for by the business and staff should not be required to take their own holiday to cover this business closure day.[10]In short, the Claimant’s claims can be summarised as:a. The holiday from 14 to 15 January 2022 to the night of 30 to 31 January 2022 is 14 days, not 15 days, so the Respondent incorrectly docked one extra day of holiday from the Claimant’s holiday entitlement in the 2021-22 holiday year;b. The Respondent should not be allowed to compel him to take one day of his holiday for a business closure day, and therefore any business closure day in the 2021-22 holiday year should be paid to staff as extra holiday. The Law Holiday Pay:
The Law
[11]Regulations 13 and 13A of the Working Time Regulations 1998 (“WTR”) provide that a worker is entitled to annual leave in each leave year, (4 weeks and 1.6 weeks respectively).[12]Regulation 13(2) WTR, provides that a worker’s leave year begins ona. On such date during the calendar year as may be provided for in a relevant agreement: orb. Where there are no provisions of a relevant agreement which apply, the date will be (for all employment beginning after 1 October 1998), on the date which that employment begins and each subsequent anniversary of that date.[13]The word ‘calendar year’ is interpreted by regulation 2 WTR as meaning ‘...the period of twelve months beginning with 1st January in any year’.[14]Leave may not normally be carried over into a subsequent leave year, unless there is agreement between the parties or where it was not reasonably practicable to take the leave as a result of the effects of the coronavirus in accordance with regulation 13(10) WTR as amended.[15]Regulation 30 WTR, provides workers with the right to bring a complaint to the Tribunal regarding (amongst other things), breaches of rights under regulation 13 and 13A. Deliberation[16]The Tribunal dealt first with the Claimant’s claim that the period of holiday from 14 to 15 January 2022 to the night of 30 to 31 January 2022 is 14 days, not 15 days.[17]The Tribunal heard evidence from Sandie Cutler, and read the signed statement of Sue Sillett although Ms Sillett was not able to be present at the Tribunal as she was unwell (which was confirmed with supporting medical evidence). Ms Sillett was therefore not able to be cross-examined, and the Tribunal had to bear this in mind when deciding what weight to place on her evidence. Nonetheless, the evidence of Ms Cutler and Ms Sillett is that it is the Respondent’s policy to count nightshift holiday from the day on which the nightshift starts.[18]The Claimant contended, that because the majority of his shift on the night between 31 January and 1 February (six hours out of nine, which includes a one-hour break), that his leave for that night should count as taking place in February, and therefore would be in the Respondent’s 2022-23 holiday year.[19]The Tribunal accepts the evidence of Ms Cutler and Ms Sillett, which was consistent and corroborative, that it is the Respondent’s policy to count nightshift holiday from the day on which the nightshift starts. The Tribunal accepts that this is a system that has been in place for many years, and it does not matter on which day the majority of the nightshift is actually completed.[20]This is also supported by and is consistent with the Holiday Request Form at [61]. The form states “start” and underneath there is a box for the date, day and time of the holiday request. The Claimant filled these in with “14/01/22”, “FRI”, and “21:30”. The Tribunal finds that this is consistent with the date of any nightshift holiday being the day that the nightshift starts, regardless of how many hours are split between the two days.[21]The Claimant sought to advance an argument that the document at [52-53], which is a letter to the Claimant confirming a change in his roster, also confirmed that holiday for his nightshift would be on the day on which the majority of the hours fell. The Claimant states, in his statement [29]: “This document clearly shows that starting work on Sunday at 21.30 to 6.30 Monday is Monday and the same applies to other days of the week,”[22]The Tribunal finds there is no substance in that argument, and the letter at [52-53] does not make any reference to how holiday should be calculated or recorded. If anything, it demonstrates the opposite of the Claimant’s argument. The letter states: Sunday: 9.30 p.m. – 6.30 a.m. Monday This, in view of the Tribunal, confirms that the nightshift that starts on Sunday at 21:30 is counted as Sunday, not Monday.[23]The Tribunal therefore concludes that the Claimant’s holiday began on 14 January 2022. The nightshift between 14 and 15 January was his first ‘day’ of holiday. This was between a Friday and a Saturday. The Claimant did not normally work the night between Saturday and Sunday, so therefore did not require holiday to be absent from work for this night. The Claimant was then absent from work, on annual leave, on the nights between 16 and 22 January. This was a further six ‘days’ annual leave. He did not require annual leave to be absent between 22 and 23 January, as this was Saturday to Sunday. The Claimant was again absent from work, on annual leave, between Sunday 23 January and Saturday morning 29 January, which is a further six ‘days’ of annual leave. The Claimant did not require annual leave to be absent between Saturday 29 January and Sunday 30 January.[24]He was then absent from work, on annual leave, between Sunday 30 January to Monday 31 January, and again between Monday 31 January and Tuesday 1 February. As per the findings above, the Respondent’s policy is to count holiday from the date the nightshift starts. The two ‘days’ of holiday between Sunday 30 January and Tuesday 1 February counted as starting on Sunday 30 January and Monday 31 January respectively. These two ‘days’ therefore fell within the 20 21-22 holiday year.[25]The Tribunal finds that the Claimant’s holiday in respect of his absence during January 2022 was correctly calculated by the Respondent and there was no incorrect deduction from the Claimant’s holiday entitlement.[26]Turning to the business closure on 2 January 2022, the Claimant’s case is that any decision to close the business should be at the expense of the business, and staff should not be required to take their holiday in relation to this. The Claimant’s case appeared to be based on the fact that this business closure date was notified to him as a bank holiday, when in fact it was not. The Claimant further points out that the dates of the bank holidays throughout the 2021-22 holiday year do not tally with the actual dates of the bank holidays.[27]On the point that the dates of the bank holidays do not tally with the actual bank holiday dates, the Tribunal is of the view that this does not assist the Claimant’s argument. The Claimant is a nightshift worker, and the Tribunal accepts the Respondent evidence that the dates of bank holidays were aligned to coincide with night shifts that were being worked. This was to ensure that nightshift workers did receive their correct bank holiday entitlement, and seems to be an entirely logical and coherent method of doing this.[28]Unhelpfully, the Claimant’s contract of employment was not included in the bundle. The Tribunal therefore had no evidence as to whether the Respondent was or was not prevented from requiring the Claimant to take holiday on certain dates by any particular term of the contract. The evidence of Ms Cutler was that the Respondent was entitled to do so, and the Tribunal notes that this is entirely normal arrangement. Employers are, as a matter of law, usually entitled to vary contracts so that an employee must take some holiday on certain days, e.g. for business closure between Christmas and New Year, provided that sufficient notice is given.[29]The Respondent says that the Claimant was notified about the need to take holiday for 2 January 2022 at a “team talk” and by email on 3 February 2021. There are no details provided by the Respondent as to when or how this team talk to place. The Claimant statement makes no mention of whether or not he agrees that this team talk took place, or what was said in it.[30]The email of 3 February 2021 is in the bundle at [54]. It gives a breakdown of “planned” holiday in the form of a table. There are nine dates within the table; eight of which correspond to statutory bank holidays and the ninth is shown as to January 2022. This is described as “Bank Holiday”. The Tribunal finds some sympathy with the Claimant’s argument that this was described as a bank holiday when it was nothing of the sort. The Tribunal also feels that the Respondent could have been a lot clearer in making it apparent to staff that January 2022 was a business closure day, for which staff would be required to use one day of annual leave.[31]The Tribunal is satisfied, nonetheless, that the Respondent did notify staff, including the Claimant, that there would be a planned day of holiday on 2 January 2022, and that this notification was given within plenty of time. The Tribunal accepts that this was something that the Respondent was entitled to do and gave more than adequate notice to the Claimant. The Tribunal therefore rejects the Claimant’s claim that he is owed a days’ holiday pay for this day.[32]In conclusion, the Claimant’s holiday entitlement for the 2021-22 holiday year was correctly calculated by the Respondent. The Claimant’s claim for unpaid holiday therefore fails. COSTS JUDGMENT The Respondent’s application for a Preparation Time Order is refused.
Background
[1]This case was heard in the Bristol Employment Tribunal on 3 March 2023. The Claimant’s claim in respect of unpaid holiday was dismissed.[2]Judgement was sent to the parties on 17 March 2023. Written reasons were requested by the Claimant, and these were given on 4 May 2023.[3]The Respondent has subsequently applied for a Costs Order. What the Respondent appears to request is actually a Preparation Time Order. The Respondent’s application states: “These costs relate to preparation for the Video Hearing and attendance on Friday, 3 March 2023”.[4]The total time claimed is 34.75 hours, charged at £84.26 per hour, making a total of £2,928.21.[5]Both parties agreed to this application being determined on the papers without the need for a hearing.
Relevant Law
[6]Rule 75 of the Employment Tribunal Rules of Procedure 2013 sets out the definition of a preparation time order: -(1) …(2) A preparation time order is an order that a party ('the paying party') make a payment to another party ('the receiving party') in respect of the receiving party's preparation time while not legally represented. 'Preparation time' means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing.(3) A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings. A Tribunal may, if it wishes, decide in the course of the proceedings that a party is entitled to one order or the other but defer until a later stage in the proceedings deciding which kind of order to make.[7]Rule 76 sets out the test to be applied by the Tribunal in considering whether to grant a costs application: - (4) 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;(b) any claim or response had no reasonable prospect of success; [or (e) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins.] (5) 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. …[8]Rule 77 sets out the procedure for determining such applications: - A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.[9]The principle in the Rules is that “costs” (the Tribunal will use this term as shorthand for both costs and preparation time) do not follow success as they do in other areas of civil litigation. Rather, the Tribunal has power to make awards of costs in the circumstances set out in the Rules. In this case, the relevant provision is Rule 76(1)(a) which gives the Tribunal a discretion to award costs of the conduct of a party meets the threshold test set out in the Rule.[10]The Tribunal’s discretion to award costs is not fettered by any requirement to link any unreasonable conduct to the costs incurred (McPherson v BNP Paribas (London Branch) [2004] ICR 1398 and Salinas v Bear Stearns International Holdings Inc [2005] ICR 1117, EAT). However, that is not to say that any issue of causation is to be ignored and the Tribunal must have regard to the “nature, gravity and effect” of any unreasonable conduct (Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78).[11]The Tribunal takes into account that the “no reasonable prospect of success” provision is not the same as that when assessing whether a claim should be struck out or not. In those cases, the Tribunal as not heard full evidence, and so the test for strike out is a high bar. In assessing whether or not a claim has no reasonable prospect of success when considering an argument for costs the Tribunal has the benefit of having heard all the evidence in relation to the Claimant’s claims and the Respondent’s response to those claims. Deliberation[12]The Respondent has applied for a costs order on the grounds that the the claim made by the Claimant was unreasonable and disruptive for the company with regards to the time taken and work involved in defending the claim. The Respondent further says that the Claimant’s claim had no reasonable prospect of success.[13]Disruption to the Respondent company is not a ground on which costs can be awarded.[14]The Tribunal may award costs if the Claimant has behaved unreasonably.[15]The grounds on which the Respondent says the Claimant behaved unreasonably are as follows: (6) County Foods fully co-operated with the ACAS early conciliation representative during both August and September 2022, to avoid the claim progressing to a Tribunal Hearing. ACAS confirmed that the issues raised by the Claimant had been satisfied and duly issued an early conciliation certificate (R198059/22/29). (7) Upon receipt of the Tribunal Claim (22 September 2022), County Foods arranged for a face-to-face meeting to be held with the Claimant on 12 October 2022 with Sandie Cutler, HR Officer, plus a Company translator, to clarify the basis of the claim lodged by the Claimant with the Employment Tribunal. It was also explained at this meeting and confirmed with print outs given to the Claimant from the time management system, that usage of his holiday entitlement had in fact been calculated correctly. (8) An additional meeting was held by Sandie Cutler on 20 October 2022 to discuss with the Claimant the Company’s position on points raised by him on 12 October 2022. It was explained to the Claimant that the Company had met legal requirements about notification of dates the Company would be closed for the holiday year running from 1 February 2021 to 31 January 2022. A printout from the ACAS website was given to the Claimant at the meeting on 20 October, to confirm the statutory requirements.[16]With regard to the first point raised by the Respondent, I do not see how this confirms unreasonable behaviour on the part of the Claimant. I understand that some claims were dealt with by ACAS and these did not proceed to an Employment Tribunal hearing, but it is clear that the Claimant’s claim for unpaid holiday (which related to two different days, and two different arguments as to why he was entitled to claim unpaid holiday) were not resolved through ACAS and proceeded. The Respondent’s cooperation with ACAS does not of itself mean that the Claimant acted unreasonably.[17]In the second and third points, the Respondent raises that a meeting was held that the Claimant to try and resolve the claim. The Respondent’s case is that the Respondent’s position regarding the holiday claim was explained to the Claimant, and he did not agree with the Respondent’s view.[18]It is important to note that no offer to settle were put forward by the Respondent. The Respondent maintained the same position that it did at the final hearing of this matter, where ultimately the Claimant’s claims were dismissed.[19]The Respondent’s case, therefore, is that the Claimant acted unreasonably by refusing to accept the Respondent’s point of view. I take into account the relative bargaining power of the parties, and the administrative resources available to each. The Claimant was a lone individual bringing a claim against the Respondent company. The Respondent had the benefit of being able to involve managers and HR specialists.[20]I also feel important to consider a wider point. The Employment Tribunal is designed to be a forum where an individual, without having to pay fees, can bring a claim against his or her employer, without the fear that they will lose more than they stand to gain from making such a claim. Exceptions, of course, can be made, and that is why it is possible for a Costs Order or a Preparation Time Order to be awarded against a Claimant. The making of such an order, however, is very much the exception, not the rule.[21]As explained above, a Tribunal will only make such an order when a Claimant has behaved unreasonably. The Claimant, in this case, had his view on his entitlement to holiday, and the Respondent had its view. For a Claimant to be considered to have behaved unreasonably, simply because he disagreed with the case put forward by the Respondent, is not how Rule 77 was intended to operate. If unreasonable behaviour was to be inferred from a party disagreeing with their opponent’s interpretation of the claim, then it would follow that every losing party in the Employment Tribunal would find themselves faced with an application for costs. It would defeat the purpose of the Employment Tribunal being a relatively level playing field where individuals can make a complaint against much larger organisations.[22]I therefore do not find that by bringing this claim and not accepting the Respondent’s (opposing) view, the Claimant has behaved unreasonably in these proceedings.[23]County Foods Ltd additionally feel that the claim made by Andrzej Denis had no reasonable prospect of success because: County Foods complied with more than the required notification (both verbal and written) to each employee, of days when the business would be closed for business. This included the allocation of paid holiday. The Claimant had taken, and been paid, his full holiday entitlement for both holiday years; 21/22 and 22/23, for this reason, no further monies were due. This was confirmed in writing to the Claimant and additionally shown to him electronically and in printouts handed to him prior to the hearing taking place.[24]As noted above, what I must into account in the “no reasonable prospect of success” provision is not the same as that when assessing whether a claim should be struck out or not. In assessing whether or not the Claimant’s claim had no reasonable prospect of success when considering an argument for costs I have the benefit of having heard all the evidence in relation to the Claimant’s claims and the Respondent’s response to those claims.[25]The mere fact that the Claimant has lost does not of itself mean the claim had no reasonable prospects of success. As long as the Claimant’s case was arguable it cannot be said it had no reasonable prospects.[26]Although it is true that the Claimant ultimately lost his case, and the findings of the Tribunal at the final hearing concluded that the Respondent had correctly calculated the Claimant’s holiday, I do note paragraph 30 of the written reasons which were given after the final hearing. Paragraph 30 stated:[30]The email of 3 February 2021 is in the bundle at [54]. It gives a breakdown of “planned” holiday in the form of a table. There are nine dates within the table; eight of which correspond to statutory bank holidays and the ninth is shown as to January 2022. This is described as “Bank Holiday”. The Tribunal finds some sympathy with the Claimant’s argument that this was described as a bank holiday when it was nothing of the sort. The Tribunal also feels that the Respondent could have been a lot clearer in making it apparent to staff that January 2022 was a business closure day, for which staff would be required to use one day of annual leave.27. I conclude that, based on information he had received and the way in which he interpreted it, the Claimant had at least an arguable case. I therefore do not find that the Claimant’s claim had no reasonable prospect of success.28. The Respondent’s application for a Preparation Time Order therefore fails.29. Even if I am wrong about my findings of no unreasonable conduct, and that the claim was not one that had no reasonable prospects of success, this would not automatically lead to the making of a preparation time order. Such conduct on the part of the Claimant only opens the gateway to such an order being considered. The Tribunal has discretion as to whether to make such an order. Having considered the Claimant’s means, and the relative status of the parties, even if I had found the Claimant had acted unreasonably or that the claim had no reasonable prospect of success, I would still not order a Preparation Time Order to be made.