Mrs A Boczek v Ryecourt Ltd: 2409220/2021
REASONS
JUDGMENT Upon hearing the parties:(1) The claimant’s effective date of termination of employment was the date of her resignation on 27 April 2021.(2) The claimant resigned without giving the required contractual notice to the respondent and without there being any conduct on the part of the respondent which justified termination of employment without notice.(3) In accordance with the contract of employment, the claimant’s contractual notice period at the date of termination of employment was 1 month. This is because although the claimant had completed more than 6 months continuous employment with the respondent, the respondent had not confirmed the completion of the claimant’s probationary period.(4) In accordance with the contract of employment, the respondent was entitled to recover the costs of arranging staffing cover during the 1-month notice period which the claimant should have given when resigning from her(5) The respondent was not however, entitled to recover the costs described in paragraph (4) above for the period of 3 months which arose from it applying the incorrect notice period for the purposes of calculating its outlay. Accordingly, the respondent was only entitled to recover outlay in the sum of £127.92(6) The complaint of breach of contract is therefore not well founded and is dismissed.(7) The claimant’s complaint of unlawful deduction of wages is dismissed. This is because the Tribunal is satisfied that the claimant received her accrued wages payable following her resignation.(8) The claimant’s complaint of unpaid holiday pay for 2020 and 2021 is well founded and amounts to £567.59(9) The respondent incorrectly deducted the sum of £383.76 from the outstanding holiday pay and should have only deducted £127.92 as explained in paragraph (5) above.(10) The respondent must therefore pay the claimant the gross sum of £439.67 in settlement of the successful complaint for unpaid holiday pay. REASONSIntroduction
[1]This case arose from the claimant’s employment with the respondent as a carer at its Belsfield Care Home in Blackpool from 13 October 2020 until 27 April 2021 when she resigned without notice.[2]The claimant presented a claim form on 20 August 2021 following a period of early conciliation from 27 June 2021 until 8 August 2021. She brought complaints of breach of contract, holiday pay and unpaid wages.[3]She claimed that while she had left her job without notice, she had never received payments for holiday pay for the period from 13 October 2020 to 31 December 2020. She calculated this loss as amounting to £454.68 when applying a formula of 12.07% to her weekly pay. She also said that she did not receive any payments for holiday pay from 1 January 2021 until 27 April 2021 and applying the same formula, this amounted to £691.96. She argued that she was not able to take her annual leave due to the respondent being ‘short staffed’. She said that because she resigned without notice, the respondent deducted 3 months’ pay for the expenses in staffing costs arising from this resignation. She argued that nobody else had been treated in this way before despite resigning without notice. She also argued that the respondent deducted £10 in respect of a deposit for a returned key fob, which they were not entitled to retain.[4]The respondent presented a response on 22 September 2021 resisting the claim and arguing that the claimant resigned without notice and that it was contractually entitled to withhold wages and holiday pay owed to the claimant when she resigned without notice and where they were put to additional expense in paying others to work her hours during the contractual notice period of 3 months. They also argued that the claimant failed to take her outstanding holiday pay for 2020 by the end the 2020 leave year and to provide evidence that she worked for the hours claimed in April 2021 when the clocking in system had no record of her working at those times. It was accepted that the £10 deduction for the key fob should not have been made and would be returned and it is understood that it has since been refunded to the claimant.[5]The case was originally listed for a 3-hour final hearing in October 2021, but was re-listed to 1 March 2022.The Issues
[6]There was no agreed list of issues provided by the parties, but taking into account the complaints brought, I applied a that the Tribunal would typically apply to complaints of this nature.[7]Breach of contracta. What was the claimant’s notice period?b. Was the claimant paid for that notice period?c. If not, can the respondent prove that the claimant was guilty of gross misconduct which meant that the respondent was entitled to dismiss without notice?[8]Unauthorised deductionsa. Were the wages paid to the claimant on [date] less than the wages s/he should have been paid?b. Was any deduction required or authorised by statute?c. Was any deduction required or authorised by a written term of the contract?d. Did the claimant have a copy of the contract or written notice of the contract term before the deduction was made?e. Did the claimant agree in writing to the deduction before it was made?f. How much is the claimant owed?g. In summary, did the respondent make unauthorised deductions from the claimant’s wages and if so, how much was deducted?[9]Holiday Pay (Working Time Regulations 1998)a. What was the claimant’s leave year?b. How much of the leave year had passed when the claimant’s employment ended?c. How much leave had accrued for the year by that date?d. How much paid leave had the claimant taken in the year?e. Were any days carried over from previous holiday years?f. How many days remain unpaid?g. What is the relevant daily rate of pay?h. In conclusion, did the respondent fail to pay the claimant for annual leave the claimant had accrued but not taken when their employment ended? Evidence Used[10]I heard witness evidence from the claimant. Her first language is Polish, but her spoken English was sufficiently good to enable the hearing to proceed in the absence of a Polish speaking interpreter, who had not appeared at the hearing to support her.[11]In reaching my decision, I took account of the fact that her husband (who supported her), although having Polish as his first language, appeared to have an excellent understanding of English. Moreover, I took account of the overriding objective and the need to manage cases flexibly and in a proportionate way. I also recognised the relevant provisions of the Equal Treatment Bench Book. Ms Richard on behalf of the respondent raised no objection with proceeding on this basis and accordingly I determined that it was in the interests of justice to proceed with the hearing.[12]The respondent called Duncan Waller as a witness. He is the Human Resources (‘HR’) and Quality Assurance (‘QA’) manager for the company.[13]A schedule of loss had been prepared and was considered at the hearing.[14]A hearing bundle was provided later on during the day of the final hearing and this caused some delay as I needed to consider its contents before the hearing began. This was not an ideal situation, but I was satisfied that sufficient time would remain available to hear witness evidence, even after my reading had taken place, even if it was necessary to reserve my judgment until a later date. As it happened, it was possible to hear witness evidence and final submissions before the day allocated for the hearing concluded. Findings of Fact The commencement of employment and probationFindings of Fact
[15]The respondent company is a care home provider and the home which is the subject of these proceedings is Belsfield Care Home and these premises are located in Blackpool.[16]The claimant, Ms Boczek started working for the respondent as carer on 13 October 2020. Like many of her colleagues, Ms Boczek did not speak English as her first language. She confirmed that she signed the contract as indicated in the copy provided in the hearing bundle on 13 October 2020. Ms Boczek said that when she was taken on, she did not speak much English. Her claim form indicated that her contract of employment was initially provided with a duration of 6 months. She said that this contract ended on 12 April 2021 and that the respondent failed to renew the contract or provided a further contract[17]Her witness statement expanded upon her initial case and she argued that she was not allowed time to read the contract and had to sign it before it was taken away by the manager Jon Dudley. She said that she received a paper copy signed by the employer many weeks later. She expressed surprise that the contract stated her hours as being ‘Bank’ rather than 24 hours per week and that she appeared to have a signed a contract which agreed to her working many more hours than 24 hour each week.[18]The respondent accepted that a contract of employment was signed on 13 October 2020 but disputed that its duration was for a period of only 6 months.[19]Two copies of the contract were included in the hearing bundle and Mr Williams argued that the correct one held by management, which was found at pages 25 to 30 in the bundle. It clearly described Ms Boczek’s working week as being 24 hours per week but having been an annotation marked ’24 HRS’ and with the word ‘BANK’ deleted.[20]The second contract in the bundle found at pages 31 to 36 recorded Ms Boczek’s hours of work as being ‘BANK’, but other than that, the contracts appeared to be identical and with the same terms and conditions, dates and signatures. Ms Boczek explained that the relevance of having ‘bank’ hours was that the employee working to these hours would be working ‘as required’. It did not appear to me that this difference was particularly relevant given the nature of the complaints being brought, but on balance find that the correct version of the contract was the first one in the hearing bundle and which retained the hours of work as being Bank hours.[21]Both contracts provided that the date of continuous employment began on 13 October 2020 and that in the section marked ‘Probationary period’, it was provided that all new employees joined being subject to an initial a six-month probationary period. It explained that: ‘During and/or at the end of your probationary period you may be asked to attend employment reviews to discuss your overall work performance and conduct.’ and also, ‘If the Home is satisfied with your overall work performance and conduct, including Care Certificate, your continuing employment will be confirmed’.[22]While Ms Boczek argued that she was working to a six-month contract, I find that she had confused the six-month probation period with the duration of her contract of employment. I accept that subject to completion of the probationary period, an employee would become permanent and accrue continuous employment in the usual way.[23]Mr Walker and Ryecourt more generally, did argue that Ms Boczek simply completed her probation period through working continuously for 6 months. The term ‘may be asked to attend employment reviews’ suggested that a review of probation was discretionary. However, this particular term goes on to say that ‘If the Home is satisfied with you overall work performance [etc,]..your continuing employment will be confirmed’ (my emphasis). Having considered the section as a whole, I find that on balance, Ryecourt would first have to actively and positively confirm an employee had completed their probation and if this had not taken place, an employee would remain subject to their probationary period until such time as the confirmation in question took place.[24]I did not hear evidence which persuaded me that Ms Boczek had completed her probationary period at the point of her resignation some 6 months and 2 weeks following the commencement of her employment. This had consequences for the calculation of her notice pay and this is considered below. Clocking/clocking off and the calculation of wages[25]I noted that in both contracts, the hours of work section required the employee to work flexibly in accordance with a weekly roster. Ms Boczek said that it was agreed from the outset that she would work only 24 hours each week over 12 hour shifts, but this effectively became 36 hours each week on Tuesday, Thursday and Saturday so as to accommodate her child care and this was agreed with Mr Dudley.[26]In terms of clocking in and clocking out, the contract provided that working time is recorded by a time clock and that employees must clock in and out, when entering and leaving the premises to work. It was noted that clocking in for someone else was a ‘gross misconduct offence’.[27]Ms Boczek claims that when her employment terminated, Ryecourt failed to pay all of the salary that was due to her as she worked 48 hours for the week ending 4 April 2021, but was only paid for 42 hours and for the week ending 2 May 2021, (with her last day of service being 27 April 2021), she was not paid for the 4 hours worked. Ryecourt say they paid Ms Boczek all of her wages and argue that she was recorded as working 42 hours for the week ending 4 April 2021 and for the week ending 2 May 2021, Ms Boczek had not clocked in at all.[28]The timesheet printouts for Ms Boczek and included within the hearing bundle, recorded her hours for the final 5 weeks of her employment as being as follows: 29/3/21 to 4/4/21 – 45 hours (but which the respondent said included 3 hours bank holiday); 5/4/21 to 11/4/21 – 57 hours; 12/4/21 to 18/4/21 – 60 hours; 19/4/21 to 25/4/21 – 18 hours; and, 26/4/21 to 2/5/21 – nil hours[29]Her last working day was recorded as being 25 April 2021, when she worked 6 hours, (having worked on the previous day that week over 12 hours and thereby making the 18 hours recorded for that week as described in the previous paragraph). When Ms Boczek raised a grievance regarding her unpaid wages, Ryecourt replied on 4 June 2021 confirming that these were her recorded hours.[30]Ms Boczek’s payslip for the week ending 4 April 2021 paid her £374.22 gross for 42 hours work at £8.91 per hour with the additional 3 hours bank holiday entitlement also being paid. The payslips for the week ending 11 April 2021 and 18 April 2021 also reflect the recorded hours worked and the final payslip of 25 April 2021 paid Ms Boczek for 18 hours worked.[31]While Ms Boczek raised some issues during the hearing concerning the way in which the clocking on and clocking off systems operated and their actual accuracy in recording staff clocking on, I did not hear sufficiently convincing evidence to persuade me that Ryecourt’s time recording systems did not record their employee’s working hours correctly. Clocking in and clocking off requirements clearly formed part of the signed contract of employment and I did not see any documentary evidence or hear any oral evidence from Ms Boczek which could persuade me that errors in the clocking in system existed Alternatively, if such errors did occur, I did not hear convincing evidence that they were raised by Ms Boczek whether during her employment, when her employment ended or as part of her grievance sent after her employment terminated.[32]Accordingly, on balance, I accept that Ms Boczek worked the hours recorded on the clocking in system and she was correctly paid for the weeks ending 4 April 2021 and 2 May 2021 based upon the time recorded in respect of her work with Ryecourt. Holiday entitlement[33]In terms of holiday entitlement, both contracts provided that the holiday year ran from 1 January to 31 December and employees were entitled to 5.6 weeks holiday each year inclusive of any bank and/or public holidays. Further details were provided in the Employee Handbook and the employer and employee signed the contract agreeing that the terms and conditions in that Handbook formed part of the contract of employment. The contract provided however, that upon termination of employment, holidays would be calculated based upon the hours worked. If more leave had been taken than accrued, the relevant amount would be deducted from final pay and if less leave had been taken than that accrued, the surplus pay would be added to the final pay.[34]Ms Boczek argued that while Ryecourt may have required employees to take leave each allocated leave year and were not permitted to carry any leave over into the next year, the staff were in reality not afforded the opportunity by their employer to take their leave before the leave expired. I accept that the employee handbook at section 2 provided that employee’s must take their full holiday entitlement during the holiday year during which it accrues.[35]However, I also accepted Mr Walker’s evidence that Ms Boczek was given the opportunity to carry over her 2020 accrued annual leave on condition she used it by 28 February 2021. He gave credible evidence that every Ryecourt home had been informed of this practice which I understood had arisen because of the challenges placed upon employees by the Covid pandemic and that the ‘off duty’ folder where employees would check their hours for the next week hours that they were planned to work.[36]However, while I accepted that this additional time had been provided by Ryecourt, I also heard evidence from Ms Boczek that there simply insufficient staffing cover available to allow her to take the accrued leave before the end of 2020, or even before the end of the extended period concluding on 28 February 2021. On balance, I accepted this evidence as credible and therefore conclude that Ms Boczek’s employer did not provide her with sufficient practical opportunity to take her outstanding annual leave within the period which they required her to take her leave.[37]Ms Boczek did accrue annual leave during 2021 from 1 January of that year until her date of termination of employment on 27 April 2021. This was calculated as being 41.35 hours calculated as follows: a) 33.5 hours at £8.71 = £291.78; and, b) 7.85 hours at £8.91 = £69.94 Total = £300.69[38]However, she was informed in Ryecourt’s reply to her grievance dated 4 June 2021 that because the outlay arising from Ms Boczek’s resignation without notice, the accrued annual leave entitlement would be offset against 312 hours of shifts which her resignation caused cover to be required. As these total costs exceeded the accrued 2021 annual leave, Ryecourt argued that Ms Boczek could not be paid her annual leave. They relied upon the relevant paragraph of her contract under the ‘General’ section of the ‘Notice periods’ terms.[39]This section provides that ‘If you leave without giving and working your full notice, any additional cost in covering your duties during the notice period not worked will be deducted from any termination pay due to you’.[40]In relation to holiday pay on termination, the contract of employment provides that ‘…holidays will be calculated in proportion to the full entitlement. If you have taken less than this entitlement the surplus holiday pay will be added to your final pay. If you have taken more than this entitlement the excess holiday pay will be deducted from your pay’. The calculation of holiday entitlement and holiday pay was of course included within the contract of employment and outstanding holiday pay could form part of the termination payment due to a leaving employee.[41]I therefore accept that Ms Boczek terminated her employment with accrued holiday entitlement of £300.69, but the question of whether she should have received this regardless of her failure to give notice will be considered below. Notice periods[42]In terms of notice payments, the signed contract of employment provided that if less than one month had been worked, no notice was required, this would increase to one week’s notice for service in excess of 1 month but before the completion of the probationary period. However, upon completion of the probationary period, an employee would have to give three months’ notice.[43]Ms Boczek confirmed that she did not give notice when she resigned. However, her argument was that while her initial probation period was 6 months in duration, she had never been told by management that she had passed her probation and therefore she could resign without notice, until this had been confirmed.[44]It should be noted that at the date of termination of employment, Ms Boczek had worked more than the indicated probationary period of 6 months, but as I found above, Ryecourt had not confirmed the completion of probation and accordingly, I find that until this confirmation had been given, she remained subject to one month’s notice only.[45]Regardless of when she actually received a paper copy of the contract, even on Ms Boczek’s evidence she would have received a copy in good time before she resigned and would have been aware of the requisite notice period required by her if she wished to resign.[46]Ms Boczek accepts that she left her employment without notice and the parties agree that the effective date of termination was 27 April 2021, which was 2 days following the last recorded day of work. Had she given contractual notice on 27 April 2021, she should have worked or have been available to work until four weeks later, being 25 May 2021.[47]Ms Boczek described her workplace as being ‘…a very stressful place, everything was good when the manager had a good day…a lot of staff hadn’t had professional training…[and as a consequence I] had to work 1:1 [with residents]. Residents who were hitting you. We should have had professional training, but we didn’t have this training.[48]She said that she was not treated well by her manager John Dudley and said that while 90% of the staff were Polish, Romanian or Indian, he had his favourites who were the English staff and he would sit with them.[49]She nonetheless said that she loved working with the residents, but her mental health has suffered and had given everything to the job. It was simply all ‘too much’.[50]While I acknowledge that Ms Boczek may have found that her employment was stressful, I did not see any written evidence or hear any oral evidence which suggested that she raised this as an issue when she resigned on 27 April 2021. Accordingly, I am not satisfied that there was any misconduct on the part of the employer which entitled Ms Boczek to resign without notice and she should have worked her notice once she decided to leave on the agreed date of 27 April 2021, albeit with 1 months’ notice, rather than 3 months’ notice.[51]Mr Walker said that Ryecourt had a consistent policy whereby it was entitled to deduct the cost arising from cover where an employee resigned without notice and where they were contractually required to give that notice. He acknowledged that there may be occasions where this recovery of outlay did not take place, but said that if staff had no outstanding wages owing to them following their resignation without notice, there would be little point in chasing them for that outlay as a debt. I understood that this was a practical approach where the employer acknowledged that while deduction of wages owing was easily carried out and amounted to a simple payroll/HR exercise, the expense of bringing a civil debt claim would not be cost effective.[52]The contract of employment allowed the employer to recover the costs of resignation without notice and Mr Walker explained that the difference between outstanding annual leave and the cost of employee cover during the notice period was £73.07. This arose from the cost of cover being 312 hours totalling £383.76 and accrued annual leave amounting to £310.69 (which included the refund of the deposit for the key fob provided to Ms Boczek while employed). It may have had the outcome of those who timed their resignation carefully, escaping the consequences of resignation without notice, but I accepted that this was an approach which an employer could elect to take and was simply applying a costs/benefits calculation to contractual issues arising between employer and employee.[53]My conclusion is that Ryecroft were entitled to recover the costs of the resignation by Ms Boczek without notice, in accordance with the contract of employment. However, as the contractual notice has been found to be only 1 month in duration, any outlay recovered should be in respect of 1 month and not 3 months as claimed by Ryecroft.[54]For these reasons, I accept that Ms Boczek resigned on 27 April 2021, without notice, that she did not demonstrate that she was entitled to resign without notice and under these circumstances, her contractual notice that should have been given is 1 month. As a consequence, Ryecroft could recover its outlay arising from the resignation from any payments accrued and due to Ms Boczek when her employment terminated without giving the contractual 1 months’ notice. The Law Breach of contractThe Law
[55]The Employment Tribunal has jurisdiction to hear breach of contract claims in certain limited circumstances by Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623). Claims may be brought by employees where the claim “arises or is outstanding on the termination of the employee’s employment” (Regulation 3). Unlawful deduction from wages[56]Section 13 of the Employment Rights Act 1996 (‘ERA’) provides that a worker has a right not to suffer deductions from wages, except under prescribed circumstances.[57]Section 23 of the ERA permits a worker to bring a claim to a Tribunal that his employer has made unlawful deductions from his wages. Holiday pay[58]The Working Time Regulations 1998 provide workers with a minimum entitlement to paid leave within regulations 13 and 13A. Regulation 13(9) also provides that leave accrued in each leave year should be taken in the leave year in question and a payment in lieu can only be made when employment is terminated.[59]However, an amendment arising from the coronavirus pandemic was introduced at regulation 13(10) provides that where it was no reasonably practicable to take some or all of the leave in the year in question because of the effects of coronavirus shall be entitled to carry forward the untaken leave. Regulation 13(11) goes on to say that the leave in question can be taken in the two leave years immediately following the leave year in respect of which it is due.[60]Regulation 30 provides that a complaint can be made to the Tribunal where a worker has been prevented from exercising their rights to leave under regulations 13 and 13A. Discussion Breach of contractDiscussion
[61]There was considerable discussion during the hearing concerning the question of notice periods during the final hearing. Ryecourt erroneously decided that Ms Boczek had completed her probationary period and her notice period would increase from 1 month to 3 months. However, the wording of the relevant contractual term persuaded me that probation could not conclude until the employer notified the employee that the probationary period had been completed. As a consequence, she remained subject to the probationary notice period. It may well have been an oversight on the part of management, however, while I did not hear any evidence that the confirmation had been given, the date of resignation took place only a few days following the passing of the usual 6 month probation period.[62]Nonetheless, Ms Boczek’s notice period was 1 month at the date of her resignation and not 3 months because Ryecourt management had not confirmed that she had completed her probationary period. Accordingly, she was subject to probationary notice periods, which was 1 month.[63]Ms Boczek was not paid for the 1 month notice period and she was not entitled to do any payment under her contract of employment because she failed to demonstrate that she had experienced misconduct from her employers which would demonstrate that she was entitled to resign without notice.[64]For these reasons, Ms Boczek is unable to succeed with her complaint for notice pay and this complaint must fail. Wages claim[65]Ms Richards explained that I had heard evidence concerning the way in which the clocking in/out system worked. The evidence she said, was that the claimant worked 42 hours per week. She added that the claimant needed to clock in and out to be able to claim her pay in accordance with her contract of[66]Ms Boczek asserted that she had reported the missing hours that she had worked but had not been paid for. She added that even if she had failed to clock in or out, she should still have been paid and said that others had been treated in this way.[67]However, as I explained in the findings of fact above, I was satisfied that Ms Boczek had been paid the wages by the date of her resignation or shortly afterwards which correctly reflected the payments which she was entitled to based upon the time sheets included in the hearing bundle. I did not hear sufficient evidence from Ms Boczek which demonstrated that there had been a failure by the employer to record her hours worked on the clocking in and out system.[68]Accordingly, no wages were owing following the resignation and they did not form part of the termination pay that could be subject to Ryecourt’s entitlement to deduct the cost of covering her absence during the notice period arising from her failure to give notice. This is something which applied to the unpaid annual leave payments and is discussed below.[69]The complaint in relation to unlawful deduction of wages must therefore fail. Holiday pay[70]Ms Richards argued that Ms Boczek had ample opportunity to take her outstanding 2020 leave and that the respondent had recognised the difficulties their staff may have been experiencing and extended the time for their taking this leave until 28 February 2021. She said that this was accessible to all staff and Ms Boczek would have been aware of this accommodation. She said that had this leave been requested, it would have been given.[71]I did hear evidence from the parties concerning the question of the 2020 leave and whether any payment for untaken annual leave was payable. It is fair to say, that the leave period fell largely within the period of which the coronavirus pandemic affected the ability of care home employees to take the leave which they needed to take in the leave year in question. It was undoubtedly challenging and staffing absences would have been a particular difficulty concerning cover when leave was taken.[72]I also took into account the amendment to the Working Time Regulations under regulation 13(10) and the question of whether it was ‘not reasonably practicable for a worker to take some or all of the leave to which the worker was entitled…as a result of the effects of coronavirus…the worker shall be entitled to carry forward such untaken leave…’. The question for was one of reasonable practicability. I accepted that Mr Walker’s evidence that there was a short extension of time for taking the 2020 leave year which applied to all employees, including Ms Boczek and which ran until 28 February 2021. I understood that once this period had expired, the employees would not be able to carry over their leave beyond this date.[73]Ms Boczek did give convincing evidence however, that while this extension was applied by her employer, there was never enough cover because of covid Consequently, she did not have an opportunity to take the outstanding leave. While I recognised the difficulty that Ryecourt experienced with employees not being able to take leave in 2020, with the anxiety that this untaken leave would result in significant staffing absences in the following 2 years (when leave for 2020 would be taken in 2021 and 2022), I was not satisfied that Ryecourt took sufficient steps to support its employees in taking this leave. Accordingly, I accept that Ms Boczek was entitled to a payment in lieu for her untaken annual leave in 2020.[74]Taking into account the overriding objective and the available evidence before me, I determined that it would be in the interests of justice to avoid listing this case for a remedy hearing given the sums involved and have applied an appropriate calculation to determine the accrued and untaken leave for 2020.[75]Ms Boczek commenced employment with Ryecourt on 14 October 2020 and completed 10 weeks service at the end of the year on 31 December 2020. Accordingly, she had worked 10/52 of her leave year. Accordingly, she had accrued 5.38 days of her 28 day leave year during this period. Applying a gross average daily rate for the 10-week period that she worked of £69.06, I determined that she had accrued an entitlement to gross holiday pay of £371.54. However, her contract of employment confirms that bank holidays form part of her annual leave entitlement and I deducted the 2 days holiday pay in her payslip of 31 December 2020, which was paid in respect of Christmas Day and Boxing Day in the sum of £104. 64. Accordingly, I calculated that she was entitled to gross unpaid annual leave of £266.90 in respect of her accrued but untaken annual leave.[76]In relation to the 2021 leave that was accrued at the date of termination, Ms Richards asserted that the claimant’s leave entitlement had been accurately calculated based upon her average working hours and in accordance with her contract of employment.[77]I accepted the calculation provided by Mr Walker in his grievance decision letter of 4 June 2021. This letter calculated annual leave for the period from 1 January 2021 to 25 April 2021 of 41.35 hours. 33.5 hours of this figure had the relevant 2020/21 hourly rate of £8.71 applied (total: £291.78) and the remaining 7.85 hours had the 2021/22 hourly rate of £8.91 applied (total: £69.94). This produced a total figure of accrued annual leave for the 2021 leave year at the date of termination as £300.69.[78]This means that the total annual leave entitlement for the claimant is £567.59.[79]This is however, subject to the application of the contractual right for Ryecourt to deduct outlay arising from Ms Boczek resigning without notice or good reason and which is considered above as being in respect of 1 months’ contractual notice.[80]Applying the overriding objective and being proportionate in relation to the amounts involved, I maintain that it is not in the interests of justice to deal with this matter at a future remedy hearing. Accordingly, I have simply taken into account the outlay described by Mr Walker in his grievance decision letter dated 4 June 2021 which was incorrectly calculated as being £383.76 in respect of 3 months’ notice and have instead divided the figure by 3 to reach the broadly correct figure of £127.92[81]Accordingly, taking into account the accrued annual leave entitlement of £567.59 and deducting the sum of £127.92 in respect of Ryecourt’s outlay arising from Ms Boczek’s failure to give contractual notice, I find that they owe her the sum of £439.67.Conclusion
[82]For the reasons given above, I find that the following: a) The claimant resigned without giving the required contractual notice to the respondent and without there being any conduct on the part of the respondent which justified termination of employment without notice. b) In accordance with the contract of employment, the claimant’s contractual notice period at the date of termination of employment was 1 month. This is because although the claimant had completed more than 6 months continuous employment with the respondent, the respondent had not confirmed the completion of the claimant’s probationary period. c) In accordance with the contract of employment, the respondent was entitled to recover the costs of arranging staffing cover during the 1-month notice period which the claimant should have given when resigning from her d) The respondent was not however, entitled to recover the costs described in paragraph (c) above for the period of 3 months which arose from it applying the incorrect notice period for the purposes of calculating its outlay. Accordingly, the respondent was only entitled to recover outlay in the sum of £127.92 e) The complaint of breach of contract is therefore not well founded and is dismissed. f) The claimant’s complaint of unlawful deduction of wages is dismissed. This is because the Tribunal is satisfied that the claimant received her accrued wages payable following her resignation. g) The claimant’s complaint of unpaid holiday pay for both 2020 and 2021 is well founded and the total accrued unpaid annual leave amounts to £567.59 h) The respondent incorrectly deducted the sum of £383.76 from the outstanding holiday pay and should only deducted £127.92 as explained in paragraph (d) above. i) The respondent must therefore pay the claimant the gross sum of £439.67 in settlement of the successful complaint for unpaid holiday pay and which is the only successful complaint in these proceedings.