Mr A Haciski v SJ Bargh Ltd: 2408500/2022
JUDGMENT
[1]The Claimant’s claim for unpaid holiday pay is well-founded to the extent that, when calculating his average remuneration for the purposes of holiday pay, the Respondent should have included within those calculations the bank holiday premium[2]The inclusion of the bank holiday premium when calculating the Claimant’s average remuneration for the purposes of holiday pay as set out at paragraph 1 above will only apply to the first 20 days of holiday for the relevant annual period(s)[3]The Claimant’s claim is not well-founded in respect of his assertion that the Respondent is not permitted to omit weeks when the Claimant did not work each working day when calculating his average remuneration for the purposes of holiday pay and, instead, take into account full weeks from longer than 52 weeks previously[4]The Claimant is therefore entitled to a sum to be determined in accordance with the findings made at paragraphs 1, 2 and 3 above and the parties are encouraged to reach terms of agreement through discussion and negotiation or to narrow the issues in dispute so far as reasonably possible[5]By 4pm on 24th April 2023, the Respondent will send to the Claimant a proposed calculation of his entitlement to holiday pay in accordance with 10.2 Judgment - rule 61 February Case No: 2408500/2022 the findings made at paragraphs 1, 2 and 3 above[6]By 4pm on 26th May 2023, the Claimant will ether agree to the Respondent’s proposed calculation (in which case the Respondent will, by 4pm on 2nd June 2023, write to the Tribunal confirming the parties’ agreement) or will, by 4pm on 26th May 2023, send to the Respondent his own proposed calculation of his entitlement to holiday pay in accordance with the findings made at paragraphs 1, 2 and 3 above[7]If either party requires there to be a further hearing in order to determine the calculation of the Claimant’s entitlement to holiday pay in accordance with the findings made at paragraphs 1, 2 and 3 above, they must write to the Tribunal by 4pm on 2nd June 2023 (copying in the other party) and ask for a one-day hearing to be listed before Employment Judge Cline (sitting alone, by CVP)[8]If a hearing is to take place in accordance with paragraph 7 above, the parties shall be permitted to rely upon the calculations sent to each other as set out at paragraphs 5 and 6 above and will not be permitted to rely upon any further evidence at that hearing beyond that which was provided for the hearing on 3rd April 2023[1]Following the hearing on 3rd April 2023 and the judgment sent to the parties thereafter, neither party updated the Tribunal as required so Employment Judge Ainscough sent a further request to the parties dated 1st August 2023 for an update by 15th August 2023;[2]By way of an email to the Tribunal dated 6th September 2023 (which appears to have been copied to the Claimant’s lay representative), the Respondent set out a summary of the discussions that had taken place between the parties, during which the Claimant’s representative is said to have agreed that the judgment sum for the relevant period should be £98.82, and commented that the Claimant’s representative had not responded to them further since 3rd July 2023 “despite numerous chasing emails being sent”;[3]Following this email of 6th September 2023, Employment Judge Cline sent a further letter to the parties noting that the matter appears to have settled and that no further hearing appears to be required. It was made clear that the Tribunal’s intention is to enter judgment for £98.82 unless, by 12th January 2024, the Claimant asks for a further hearing to be listed as the matter has not in fact been concluded; and[4]The Tribunal has not received any further response from the Claimant. IT IS ORDERED THAT: 1) The Claimant’s claim for unpaid holiday pay has been compromised between the parties and the Respondent shall pay to the Claimant the gross sum of £98.82. The Claimant shall be responsible for the payment of any tax or National Insurance arising.