Mr A Stanton v C & C Bars Ltd: 2503358/2018
JUDGMENT
[1]The claimant’s complaint of breach of the Working Time Regulations (Holiday Pay) is well-founded. The respondent is ordered to pay the claimant the sum of £3,730.06 calculated as follows: Outstanding holiday pay for the year 2016 - £1355.70 Outstanding holiday pay for the year 2017 - £1882.92 Outstanding holiday pay for the year 2018 - £491.44 This is a net amount and the respondent is responsible for the payment of income tax and any national insurance contributions thereon.[2]Pursuant to section 38 of the Employment Act 2002 the tribunal is satisfied that the claimant has succeeded in his claim for holiday pay and the respondent has failed to provide the claimant with a written statement of particulars of employment. Accordingly the tribunal is entitled to and does exercise its discretion to award the claimant two weeks’ pay at the rate of £313.20 making a total sum of £626.40 as compensation for the respondent’s failure to provide the claimant with a statement of his employment particulars. The total sum ordered to be paid by the respondent to the claimant is £4356.46.REASONS
[1]By a claim form presented on 2nd November 2018 the claimant brought a claim for outstanding holiday pay.[2]No response was received to the claim. The notice of hearing was sent to the parties on 27th November 2018.[3]The claimant gave evidence at the hearing today under oath and produced a number of documents showing how he had calculated his claim for holiday pay.[4]The claimant was employed by the respondent as bar staff. He commenced his employment in 2013 and left on 1st July 2018. He did not receive any written particulars of his employment during the course of his employment.[5]The claimant was not paid any holiday pay during his employment. He was told he was not entitled to holiday pay. The claimant worked various different hours and days of the week. He worked an average of forty hours a week. The respondent’s holiday year ran from 1st April to 31st March each year, but the claimant did not take any holidays during the course of his employment, nor did he receive any holiday pay during his employment.[6]The Tribunal took account of the deduction from Wages (Limitation) Regulations 2014, which limited claims for unlawful deduction from wages and holiday pay to two years from the date of the claim.[7]The claimant’s average weekly wage for 2016 was £288.00. His average weekly wage for 2017 was £300.00. His average weekly wage for 2018 was £313.20. The claimant contacted ACAS and calculated his claim for holiday pay based on the government website. He is claiming his holiday pay on the basis of his average weekly wage and is then using a calculation of 12.07% to ascertain his holiday pay entitlement for each year.[8]The claimant worked thirteen weeks in 2018. He is claiming £491.44 holiday pay for the last year of his employment in 2018. In 2017 the claimant’s weekly wage was £300.00. He worked the full year. Accordingly he is claiming £1882.92 holiday pay for that year. Although the claimant worked all of 2016, his claim for holiday pay is limited to thirty-nine weeks for that year taking account of the 2014 regulations. His average weekly wage over that year was £288.00, so he is claiming £1,355.70 holiday pay for that year.[9]The tribunal is satisfied that the respondent failed to provide the claimant with a statement of written terms and conditions of employment. Accordingly pursuant to section 38 of the Employment Act 2002, the tribunal is satisfied that the claimant has been successful in relation to a claim under schedule 5 of that Act, and that the claimant should be awarded a sum in compensation for that failure. The tribunal has therefore awarded him two weeks wages, based on his average weekly wage of £313.20, in respect of the respondent’s failure to provide the claimant with a written statement of particulars of employment. EMPLOYMENT JUDGE MARTIN