Miss R Hannon v Sooty’s and Sweep’s Ltd: 2414523/2019

EMPLOYMENT TRIBUNALS

Case No 2414523/2019

Between

Miss R HannonClaimant

Sooty’s and Sweep’s LtdRespondent

Before

Employment Judge McDonald

In person for claimant

Mr J Chiffers (instructed by Counsel) for respondent

Date 15 October 2020

JUDGMENT

[1]The claimant’s employer and the correct respondent to the claimant claim is Sooty’s and Sweep’s Limited and that company is substituted as the respondent in place of David Martin Williams.

[2]The claimant’s complaint that the respondent failed to pay her holiday pay for the holiday year January 2019 to October 2019 succeeds.

[3]The respondent must pay to the claimant the gross sum of £960.67 less any deductions for tax and national insurance which it must remit to the appropriate authorities.

REASONS

[1]The claimant's claim is for holiday pay for her final holiday year employed by the respondent. I gave oral reasons for my judgment at the hearing and the claimant requested those reasons in writing. I set out those reasons below, starting with the facts, then the law then my calculation of the amount due. Case No. 2414523/2019 Code V 2

[2]In a separate Case Management Summary of today’s date I have set out my reasons for deciding that Sooty’s and Sweeps Limited should be substituted as the respondent to the claim in place of David Martin Williams.

[3]In reaching my decision I heard evidence form the claimant (who was cross examined by Mr Chiffers) and from Mr Martin Williams. I had also had before me a bundle of documents prepared by the respondent and a bundle of pay slips sent to the Tribunal by the claimant. During the hearing the claimant also provided the Tribunal and Mr Chiffers with a copy of her Contract of Employment.

Facts

[4]In terms of the facts, it was agreed and apparent from the claimant's contract of employment that her annual holiday year was the calendar year. She left employment on 17 October 2019 and therefore her annual leave entitlement for the holiday year 2019 was pro rata at 0.79 of a full year. In terms of holiday already taken, the claimant's payslip for January 2019 showed that she had taken 22.5 hours’ holiday and been paid the net equivalent of £191.25 gross holiday pay. She had not received any other holiday pay relating to the holiday year 2019.

[5]The claimant had been on Maternity Leave and received SMP rather than her normal wage from February 2019.

[6]The claimant’s contract of employment specified 162 hours as her holiday entitlement. Mr Williams in his evidence calculated her entitlement based on that (and taking into account the holiday already paid in January) to be £894.20.

The Law

[7]The Working Time Regulations (regulations 13 and 13A) provide a statutory minimum amount of holiday pay which an employer must provide in any holiday year. That requirement is to provide 5.6 weeks of holiday.

[8]Under the Working Time Regulations (regulation 14), a worker is entitled to be paid for any holiday untaken at the end of their employment. The formula used to calculate that is (A x B) – C, where A is the leave to which the worker is entitled; B is the proportion of leave year which expired before the termination date, and C is the leave already taken in that holiday year.

[9]In terms of the pay used to calculate holiday pay, the starting point is sections 221-224 of the Employment Rights Act 1996. However, in Bear Scotland & Others v Fulton & Others

[2015] ICR 221

the Employment Appeal Tribunal held that items such as discretionary overtime should count for holiday pay to ensure that the holiday pay entitlement under the Working Time Regulations reflected the requirements of EU law. In practice what that means is that where an employee has either normal working hours or no normal hours and the pay varies, a week’s pay is calculated using a 12 week average. Calculation

[10]In this case the claimant had taken maternity leave in February 2019 and then not returned to work. That meant the last months in which she had normal pay were Case No. 2414523/2019 Code V 3 November, December 2018 and January 2019. The payslips for those months showed that the claimant had worked 139 hours in November 2018, 136½ hours in December 2018 and 129.7 hours in January 2019.

[11]Taking those payslips together in order to calculate an average of the weekly hours worked, I reach a calculation of 405.25 hours. Dividing that by the number of days in those months, which is 92 in total, gives an average total per day of 4.4 hours per day or 30.8 hours per week. At the agreed rate payable to the claimant of £8.50 that gives average pay of £261.80 per week.

[12]In terms of the annual leave to which the claimant was entitled, the 5.6 week for the whole year when reduced to take into account the leaving date of 17 October 2019, gives 4.4 weeks. Multiplying that entitlement by the weekly rate of £261.80 gives £1,151.92. However, from that there must be deducted the £191.25 paid to the claimant for holidays in January. That calculation means that the amount remaining due to the claimant is £960.67. That is the gross amount due and the usual position is that the employer will be responsible for ensuring that any tax or national insurance to be deducted from that is submitted to the proper authorities. Employment Judge McDonald Date 15 October 2020