Miss Alicia Brooks v Together Trust: 2401897/2019
JUDGMENT
The respondent is ordered to pay the claimant the gross sum of £1647.80 (less such deductions required by law) which is the amount of accrued holiday pay due to the claimant upon termination of her employment.REASONS
[1]This case called as a final hearing. The parties had been advised as to the time and date for the hearing. When the case called the respondent was not represented. I asked my clerk to check the position and the respondent advised that they did not realise the hearing was taking place today. The claimant was in attendance.[2]I put the position to the claimant and it was agreed that it was consistent with the overriding objective to deal with issue today in the absence of the respondent. It was possible to put the respondent’s position to the claimant as they had submitted a detailed response form. That would avoid delay and would ensure the matter was dealt with justly.[3]The issue was in narrow focus. The question was what the claimant’s holiday entitlement was when she left her employment. The response form clearly set out the respondent’s position. The claimant gave evidence and referred to a number of productions. 1 of 5 Findings in fact[4]I was able to make the following findings in fact from the evidence I heard.[5]The claimant was employed by the respondent for a period of 10 months. She was employed to work 5 days a week and contracted to work 37.5 hours a week. The number of hours she worked each day would vary but her weekly hours remained constant. She was paid £8.80 an hour.[6]She entered into a written contract of employment which entitled her to 6.6 weeks holiday a year[7]As she had worked for 10 months by the time her employment ended, she had accrued 10/12 x 6.6 weeks which comes to 5.5 weeks’ worth of holidays.[8]Her entitlement in terms of hours was therefore 5.5 weeks x 37.5 hours = 206.25 hours.[9]The claimant had taken 15 hours holiday by the end of her employment. She was therefore due 187.25 hours holiday.[10]The claimant had been absent by reason of illness from 30 May to 9 December 2018. She had submitted sick lines but the respondent paid her full pay instead of sick pay for that month. She was overpaid by £1,154.35.[11]The claimant’s contract of employment allows the respondent to make deductions from sums due to the claimant by way of overpayments.[12]The claimant’s contract also states that her sick pay entitlement increases after 6 months’ continuous service to 1 month full and 1 month half pay sick pay entitlement.[13]The claimant had therefore acquired the entitlement to one month’s full pay by August and a half pay by September by way of sick pay. Rather than pay the claimant full pay (which was her entitlement) the respondent only paid her statutory sick pay during these months. By so doing the respondent had recovered the overpayment to which it was entitled.[14]The claimant also received a tax rebate for the May overpayment in her August salary payment.[15]The respondent had already recovered the month’s pay that was paid to the claimant in error by the end of her employment.Law
[16]A worker is entitled to be paid holidays that have accrued by the date of termination of employment. This is set out in the Working Time Regulations 1998 and in terms of the contract of employment. 2 of 5[17]A failure to pay the sums due can result in a claim for accrued holiday pay either in terms of the Regulations or directly under the contract of employment. A Tribunal can award a sum in respect of the accrued holiday entitlement. Decision and reasons[18]The respondent accepts that the claimant had only taken 15 hours annual leave. The claimant is therefore due to be paid 187.25 x hourly rate of £8.80 which amounts to £1647.80.[19]The overpayment referred to by the respondent had already been recovered from the claimant. As a result the above sum falls due, less any deductions required by law. This is the sum due to be paid to the claimant under her contract of employment.[20]Payment should be made within 14 days.