Mr L Barkass and Miss E Wright v The London Borough of Croydon: 2300121/2025 and 2300122/2025
JUDGMENT
[1]The claimants’ claim for unlawful deduction of wages is well-founded.[2]The respondent is ordered to pay to Mr Barkass £1252.89, subject to tax and National Insurance.[3]The respondent is ordered to pay Ms Wright £664.74, subject to tax and National Insurance.[4]The claims preceding January 2023 are stayed.REASONS
[5]The claim is for unlawful deduction of wages in respect of hours worked on bank holidays. It dates back to the claimants’ respective start dates unless the 2 year limit on unlawful deduction of wages applies. Both sides accept that when they worked bank holidays that otherwise would fall on their rest day the claimants worked more than their contracted hours. Their salary did not account for these hours but they were paid the bank holiday enhancement. Both sides have agreed what the unpaid wages would be, if they should have been paid. Ms Kamkshi Mangra-Bapoo even agreed that the salary needs to be reviewed to reflect these additional hours and the respondent had offered 2 years worth of the back pay and invited the claim be dismissed on that basis, but the claimants wish to have a determination and claim the sums prior to the 2 years if they can do so.[6]The dispute is whether as a matter of contract the claimants should have been paid their normal hourly rate and the bank holiday enhancement for those hours. In their additional submissions the respondent emphasizes that their case is that the claimants have been paid correctly under the contract.[7]The issues are:7.1 what were the claimants contractually entitled to be paid for working over their usual hours on bank holidays?7.2 Were they paid it?7.3 If not, how far back can they claim having regard to the 2-year statutory limit?[8]We discussed the case of Afshar and ors v Addison Lee Ltd ET Case No.3306435/20 which is subject to an appeal, which may effect where the 2 year limit applies. We agreed that I would deal with the issue in principle and if the claimants are successful award the sums within the 2 year period and stay the remainder of the claim pending the outcome of the appeal.[9]I heard evidence from Mr Barkass on behalf of the claimants and from Ms Kamakshi Mangra-Bapoo, HR Business Partner, of the respondent.[10]The respondent’s representative prepared a written submission and I heard orally from both parties. There was a 500 plus page bundle and additional documents supplied by the claimants. I note that this was a 2 hour hearing so time was limited.[11]Following the hearing on 9 July 2025 the respondent’s solicitor wrote to correct their submissions. The claimants provided a response which appeared to attach further evidence. I asked the parties to confirm whether they were relying on further evidence and a hearing was required. Both indicated it was not their intention to introduce any further evidence and that a further hearing is not required.[12]The facts were mostly agreed and are as follows.Facts
[13]The claimants are both employed as General Assistants in Croydon Crematorium. Mr Barkass has been employed in this role since 15 July 2013 (page 71). Prior to this he worked as a Mobile Enforcement Dog Handler for the respondent for 16 years. Ms Wright has been employed in the role since 28 March 2022.[14]The claimants’ working hours and shift patterns are set out in the claim on page 33. Essentially they are paid a salary for 36 hours a week. They are required to work weekends and bank holidays.[15]They have a shift pattern which runs 365 days a year. However, on a bank holiday their manager requires them to work a different shift of either 11 hours in the summer or 9 hours in the winter, instead of whatever they would have had on the rota. Inevitably this involves hours above the 36 hours a week. How many depends on what they would have been scheduled to work but the additional hours could be between 2 and 11 hours, depending on the normal shift they would otherwise have worked. A table showing this is on page 33. The manager does not treat these hours as overtime and instruct payroll accordingly. He only instructs the enhancement to be paid.[16]The claimants are required to work these varied shifts on a bank holiday and have been threatened with disciplinary action if they do not.[17]Therefore, the claimants receive their normal salary and an enhancement for working a bank holiday. They do not receive their normal hourly pay for the additional hours as well as the bank holiday enhancement.[18]Various collective agreements govern the claimants’ terms and conditions of employment, which are as follows.[19]“The Green Book” which states that all employees required to work beyond the full-time equivalent for the period in question; on weekends; public holidays; shift work and on rest days following recall to work will have arrangements for remuneration for these working patterns clearly set out in their contracts of employment. This may be by way of an inclusive rate of pay or locally agreed premium payments or as locally agreed between the parties.[20]Paragraph 2.6 states employees, in receipt of basic pay …who are required to work(a) beyond the full-time equivalent hours for the week in question or(b) on a Saturday or Sunday or …(d) on public holidays ….are entitled to compensation as follows unless an inclusive rate of pay to recognise these requirements has been negotiated locally.[21]The compensation is set out as:[22]“(a) additional hours Employees who are required to work additional hours beyond their working week are entitled to receive enhancements on the following basis: Monday to Saturday time and a half Sundays and Public… double time Holidays …. “(d) Employees required to work on a public or extra statutory holiday shall, in addition to the normal pay for that day, be paid at plain time rate for all hours worked within their normal working hours for that day.” It also specifies that time off with pay will be allowed of a half day when the employee works less than a half day and a full day where they work more than a half day on the bank holiday.[23]The Single Status Collective Agreement between the respondent and locally recognised unions states the provisions of the Green Book which are superseded varied or removed by the Agreement and all other terms and conditions remain unchanged. The clause referred to at paragraph 16 above was not superseded. The clause at 19 above was superseded as part of paragraph 2.6. The only parts of that paragraph which expressly remain is 2.6d) and e). It expressly states the retained sections are those referring to working on public holidays and sleeping in duty.[24]At paragraph 8 the agreement states: “8.The Working Week and Premium Rates of Pay For Non-Standard Hours8.1 The Council’s normal working week is defined as Monday to Saturday 7am to 7pm.8.2 The premium rates of pay for working outside the normal working week are defined in Appendix 3. Appendix 3 states that all allowances and enhancements are to be standardised across the work force. The basis of calculation for all allowances and overtime will be basic pay. It then states: “2. Working week2.1 Hours worked as part of the normal working week will be paid at flat time (with the exception of Saturdays).2.2 Subject to prior approval hours worked in excess of 36 hours per week will qualify for overtime at the relevant overtime rates.2.3 For employees required, as part of their normal working day, to start work before 7am or finish work after 7pm an enhancement of 33% will be paid on such hours worked.” Paragraph 8 specifies that there is a 10% or 17 % enhancement for shift work. Paragraph 10 deals with additional hours (overtime). It states that additional hours are where an employee works beyond their weekly contracted hours. Time off in lieu will be considered initially as appropriate compensation. It states: “Where a manager has agreed that additional hours need to be worked and service requirements prevent the employee from TOIL, overtime payments may be made at the following rates….: a) For employees at grade 11 or below, payment will be made at the following rates…. -…. -hours worked on a Public Holiday to be paid at 200% of basic hourly pay. (p212 of the bundle). At 10.5 it stated that no minimum payment of hours will apply except on Public Holidays where the current arrangements will continue. It states that all overtime payments must be pre-authorised and signed off. Again at paragraph 11 it states that the current arrangements for working bank holidays remain unchanged i.e. the provisions in Part 3, paragraph 2.6 (d) of the Green Book apply.[25]The Employment Based Cost Review: Collective Agreement was a further local collective agreement dated 18 January 2011. Some of its provisions superseded the collective agreement above. It said at paragraph 1.4 of the document that unless changed by the provisions in this document the provisions in the Single Status Agreement remain the same.[26]At paragraph 5 under the hearing “Additional hours payments (overtime)” in respect of the claimants’ grade: “5.2.1 …the rate at which employees at grade 11 or below are paid for additional hours will be: i) Plain time for overtime hours worked Monday to Saturday between 6 am and 8pm i.e. paid at the employee’s basic hourly rate. ii) Basic hourly pay enhanced by 20% for overtime hours worked Monday to Saturday between 8pm and 6 am. iii) Basic hourly pay enhanced by 50% (i.e. time and a half) for overtime hours worked on a Sunday….” It makes clear in paragraph 6 that previous enhancements for working on weekends are being changed. There is also a modification as to when shift payments are paid. It does not state what overtime rate is payable on a bank holiday. It does not state anything about bank holidays at all. There is no paragraph stating an intention to change the rate of overtime on bank holidays.[27]The claimants own contracts stated that their basic hours were 36 hours a week for which they received a salary. The contract specified that the Council’s normal working week is Monday to Saturday 6 am to 8pm and hours worked during those times will be paid at plain time. It said that the claimant’s normal hours were various shift patterns. The contract states that employees at or above grade 12 are required to work all reasonable hours necessary to discharge the duties of the post. The claimants are grade 5.[28]The contract specifies that the terms and conditions of service would be in accordance with the NJC collective agreements. It also says these are supplemented and modified by the Council’s own rules, policies and procedures and agreements reached with trade unions locally.[29]The contract states all employees are entitled to paid bank holiday or equivalent leave.[30]The claimants’ role profile states that they work 36 hours a week, 50% during normal office hours and 50% at weekends and public holidays. It says that special requirements are expected of the postholder including to work unsociable hours, weekends and bank holidays which is reflected in the salary grade of the post. Under additional requirements it states that the postholder must be prepared to work a 2 shift rota including a rota system to cover weekends and bank/public holidays. Again at page 109 it states that a special condition is that the postholder must work unsociable hours including weekends and bank holidays as part of a rota on a shift basis.[31]The bundle includes an addendum to the staff contract at page 111 which states that “you are required to work outside of the Council’s normal working week as determined by your manager and that the working patter which may be varied from time to time at the discretion of the council. It says there are premium rates of pay for working outside of the Council’s normal working week.[32]It states in relation to working hours and pay (115) the following rates of pay will apply to hours worked as part of your normal working week:[33]“Plain time for overtime hours worked Monday to Saturday between 6 am to 8 pm; time and a fifth for overtime hours worked Monday to Saturday between 8pm and 6am and time and a half for overtime worked on a Sunday.[34]There is nothing said about bank holidays.[35]For employees above grade 12 they are required to work all reasonable hours necessary to discharge the duties of their post. Overtime payments are not payable.[36]It states that for employees of the claimants’ grade additional hours are paid as set out in paragraph 28.[37]The addendum also refers to shift allowances. At page 116 the addendum states the same as paragraph 2.6 (d) of the green book.[38]Included in the bundle is the manager’s guide for additional hours payments. It sets out the need for approval of the overtime . It repeats paragraph 2.6(d) in respect of working on public holidays.[39]The claimants’ manager completed monthly reporting sheets for enhancements to contracted hours for the hours worked on a bank holiday. This makes clear that the enhancement is intended to be 100%. He did not also complete the paperwork required to be paid for hours worked on those days that were additional to the 36 hours a week.[40]The claimants were therefore paid their norma salary for 36 hours a week; the enhancement payment for the full hours they worked on bank holidays and a shift allowance as appropriate.[41]Mr Barkass has said that in his previous role he worked a three tier shift rota which included weekends and bank holidays and they received double time for bank holidays.Relevant law
[42]The relevant law is set out in the respondent’s submission. Conclusions What were the claimants contractually entitled to be paid for working over their usual hours on bank holidays? Were they paid it?Conclusions
[43]I consider the claimants were contractually entitled to be paid for the additional time they worked above 36 hours a week when their manager required them to do so.[44]Although there is expectation in their contracts and job role that they will work unsocial hours and bank holidays and their rotas can be varied there is no expectation that they should work more than 36 hours without being compensated via overtime.[45]There is a clear distinction between those at grade 12 and above and those of the claimant’s grade. Those at grade 12 and above are required to do all reasonable hours needed. Those at the claimants grade are to be paid for the additional hours they are required to work.[46]Whilst a manager is to approve this, the implication is that where the work is needed by the manager and TOIL is not available then the hours should be paid. Here the issue is that the manager has not regarded the bank holiday shifts as overtime at all and has not approved them when he should have (unless the claimants were given TOIL which is not argued here).[47]In my view the fact that the manager required the claimants to do the additional hours entitles them to the overtime payments in the absence of TOIL. They should have been processed as such.[48]In terms of how much they were entitled to be paid for overtime on bank holidays I agree with the claimants that it is double time, the same as those hours that were normal hours. In my view it is clear that bank holidays are intended to be paid at double time. That is what the green book says for both overtime and normal hours worked on bank holidays. It is also what the Single Status Agreement said.[49]I do not agree that there was any intention to change this in the latest collective agreement. Where changes to the previous agreement were made they were specified. There is no change to the bank holidays. The enhancement sheet has bank holidays down as an enhancement of 100%. I do not accept there was ever an intention in the collective agreement to only pay double time for normal hours and basic pay for overtime hours on a bank holiday.[50]Here the mistake has been that the respondent has not acknowledged the regular requirement for the claimants and their colleagues to work additional hours over and above their normal hours on bank holidays and so their pay has not been processed as such. They have therefore received double time for the normal hours they would have worked on that day if it had been a normal day. They have only received the enhancement for any hours over and above the normal hours. They have therefore only received single time for additional hours worked on those days. If not, how far back can they claim having regard to the 2-year statutory limit?[51]It was agreed I would order the 2 years’ back pay in these circumstances and stay the remainder of the claim. This is the bank holiday dates from May 2023 onwards. For Mr Barkass the sum due is £1,138.99. For Ms Wright the sum due is £604.31. As the respondent points out they both would have received additional 10% shift allowance on top of these figures so the totals due are £1252.89 and £664.74. Approved by Employment Judge Corrigan 26 July 2025 Public access to Employment Tribunal Judgments All judgments and written reasons for the judgments are published online shortly after a copy has been sent to the Claimant(s) and Respondent(s) in a case. They can be found at: www.gov.uk/employment-tribunal-decisions. Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/