Mr A Kashim v Enigma Security Solutions Ltd: 3200288/2016
REASONS
[1]Reasons are provided in writing for the Judgment only to the extent that it is necessary to do so in order for the parties to understand the Judgment and only to the extent that it is proportionate to do so. Further, all facts were found on the balance of probabilities.[2]By a Claim Form which was presented on 22 March 2016, Mr Kashim complained that the Respondent had breached the Working Time Regulations in relation to his holiday pay. It appeared initially as if the Claimant was bringing a claim for pay for accrued holiday but Regulation 13A(6) forbids payment by the employer for accrued holiday which has not been taken. This Regulation is binding on this Tribunal whatever may have happened during the course of the Claimant’s employment.[3]After an adjournment when the Tribunal dealt with another case and also read the relevant documents, the parties returned to the Tribunal and it appeared that the Claimant was complaining then under Regulation 30(1)(a)(i) read with Regulation 13A that the Respondent had refused to permit him to exercise his right to paid leave, an entitlement which he had both under Regulation 13A of the Working Time Regulations and also a slightly greater entitlement under his contract.[4]Essentially the background facts were agreed in this case, although witnesses gave evidence and were cross-examined. Also, further documents were added to the bundle and both the Claimant and Ms Shaw were recalled to deal with the additional documents. The Claimant called his witness to deal with the additional documents, namely the holiday request form.[5]There was some evidence from the Claimant that in previous years he had worked the eight Bank Holidays and he was paid double time on those days and had been entitled further to a paid day off in lieu at the normal rate of pay.[6]The Claimant queried his holiday entitlement by email to Ms Shaw who had responsibility for Human Resources over the last year or so on 23 October 2015. Ms Shaw responded shortly thereafter on the same day to indicate to him that he was entitled to 17 days annual leave in total, that he had taken 12 days and therefore there were five days remaining.[7]Under the terms of the Claimant’s contract and indeed under the Working Time Regulations he was entitled to four weeks holiday per year. There was no dispute that he usually worked four days a week therefore the four weeks holiday for him represented 16 days of paid holiday.[8]During 2015 he had accrued an extra day’s holiday for covering extra shifts and therefore he was entitled to 17 days plus the Bank Holidays in that year. The reply from Ms Shaw to the Claimant made no reference to the Bank Holidays and simply referred to the 17 days entitlement.[9]Also on 23 October 2015, Mr Kashim wrote back to Ms Shaw asking for a recalculation. In his email back to Ms Shaw he gave examples of his entitlement to 25 days leave in 2014 and to 23 days leave in each of 2010 and 2013. He stated that the entitlement that she had informed him about was incorrect. He asked Ms Shaw to check again and to advise. Unfortunately there was nothing further by way of correspondence or emails placed before me to indicate either that Ms Shaw responded or that the Claimant pursued the matter any further. Although the Claimant in the course of closing made reference to there having been conversations, he did not question Ms Shaw about any further conversations when she was giving her evidence. Also in the witness statement that he put before me there was no reference to any such conversations.[10]Then a week or so later in early November 2015 Mr Kashim put in a written holiday request on the company’s standard form which was a template which everyone agreed had been current for some considerable time. He asked for leave in the week of 16 November 2015. Based on the holiday request forms which were produced it seems that this was probably for leave starting on 15 November. The Respondent rejected that leave request on the basis that it was being sought at short notice and there would be insufficient time to arrange cover for the Claimant. It was not disputed that the Claimant held a position of some responsibility and he was also engaged in training a colleague up.[11]The Respondent asked the Claimant to request leave on new dates giving more notice. The holiday form template stipulated in a number of bullet points at the bottom that four weeks’ notice was required for holiday requests. I accepted the evidence that this time frame was not always stuck to, but I considered that this simply meant that the Respondent could in any given case waive the notice requirements. I also noted that under the Working Time Regulations there are notice requirements.[12]Indeed the Claimant appears to have accepted the Respondent’s position in relation to declining his holiday for those specific days. He replied on 11 November 2015 by indicating that he would take the leave in the first week of December 2015. There was no objection by Ms Shaw to that course in principle despite the fact that one of the bullet point says that holiday should not be taken in December.[13]On 18 November the Claimant wrote again to Ms Shaw to say that he had decided to just take payment instead of actually taking his holidays. I noted that there was no challenge in any of this correspondence in November to the reduced amount of holiday that the Respondent said the Claimant was entitled to. The Claimant did not query this any further around the time that he indicated that he would be taking payment instead of actual time off. He submitted a holiday request form specifying the days off in respect of which he was then paid although presumably he worked.[14]The original holiday request form appears to have been for four days and then when he reached the agreement at his request with Ms Shaw that he would take payment instead, he seems to have put in a holiday request form covering five days.[15]I concluded on the basis of that evidence and the evidence from the witnesses that a practice had developed whereby both the Respondent and the Claimant colluded in breaching the requirements of the Working Time Regulations in that holiday could be paid off and the Claimant continued to work. There is some financial benefit obviously to the Claimant because in effect he gets more payment than he would if he took the time off as holiday. This Tribunal has no enforcement powers in relation to such a breach. I merely commented that this practice did not advance the purpose of the Working Time Regulations which is to ensure that adequate rest is taken.[16]The fact remained that the Claimant was prepared to accept payment for the outstanding five days of holiday in November 2015 and both parties agree that there were at least five days due.[17]The Claimant says he was due a further eight days leave also and that the Respondent was not prepared to let the Claimant take that time off. This case did not appear to me to be consistent with the chronology above in relation to the other request for leave in November 2015, which the Claimant elected to “cash in”, but which the Respondent was agreeable to him taking as leave.[18]It appeared to me that the Claimant simply raised a query about his annual leave entitlement, and Ms Shaw responded. Although the issue of his entitlement was not resolved to the Claimant’s satisfaction he did not pursue this. There was simply an exchange of two or three emails. The question I had to ask was whether that amounted to a refusal to permit the Claimant to exercise the right to take annual leave?[19]I considered the case of Mr P Miles v Linkage Community Trust Ltd Employment Appeal Tribunal on 10 March 2008 (UKEAT/0618/07) and in particular paragraphs 26 to 27 of the judgment of His Honour Judge McMullen where he deals with the test of ‘wilful refusal’ albeit in relation to a different but similar right under the Working Time Regulations. It was therefore very much on point in my view. Importantly His Honour Judge McMullen considered the question of how much needed to be done by the employer before the Tribunal could find that there had been a refusal of permission to exercise a statutory right. In brief he referred to the language of the Regulations requiring two positive steps to be taken - “One is exercise of the right and the other is refusal of permission to do so”. He then went on to discuss more generally that there were other situations where it was open to Parliament to have expressed this remedy in more neutral terms such as “a failure” or “the non availability of the right”.[20]So asking myself the questions that His Honour Judge McMullen set out in that case I noted that the issue was raised as a query but was not pursued by the Claimant after late October 2015. Further there was no evidence of refusal by the Respondent to allow the Claimant to exercise his right to the five days holiday. They gave an explanation of their calculation of the holiday and against the wording of the judgment that I have referred to it appeared to me that on balance the Respondent’s actions did not reach the threshold that His Honour Judge McMullen had outlined of a positive step having been taken. It followed therefore also that the Respondent did not refuse the Claimant permission to exercise his right to annual leave. In Miles the Learned Judge commented that the outcome may appear harsh but the result is one which is consistent with the fact that the purpose of the protection is to ensure that the Claimant has the requisite rest not equivalent pay.[21]The clearest example if it helps of a situation where a Tribunal would probably have very little difficulty in finding liability was where an employee had taken time off or at least had submitted a holiday request for specific date which the Respondent had failed or refused to permit or to pay him for. There were no such circumstances in this case.[22]So in all the circumstances it appeared to me that this was a claim which was not well founded and therefore I have dismissed it. Costs[23]After the Tribunal announced its judgment the Respondent made an application for costs against the Claimant on the basis that they had reached an agreement in principle the week before the hearing by which the Respondent would have given eight days pay to the Claimant. They indicated that the Claimant had received the written terms of settlement on Friday of last week but had declined to proceed with it.[24]The Claimant confirmed that he had been sent an offer but it had only reached him half way through the afternoon on Friday of the week before the hearing. He had had insufficient time to consider it and the Respondent had sought a response about half an hour later.[25]The Tribunal refused the application for costs. I took into account that the Claimant was a litigant in person and that the offer of settlement was made late with a very short time frame for consideration. I also took into account that the Claimant had lost the opportunity of receiving the eight days pay which was offered in settlement. And of course he had not succeeded at the Employment Tribunal. It was correct that the Tribunal’s powers of remedy could have allowed a payment which was greater than eight days pay but in all the circumstances it appeared to me that the offer of eight days pay was a reasonable offer and was favourable to the Claimant.[26]In all the circumstances however the Claimant had not acted unreasonably and therefore the grounds for consideration of a costs order were not made out. In the alternative if this was unreasonable conduct, I was satisfied that in the circumstances it was not appropriate to make an order for costs. I commented with some criticism about the practice which had arisen within the Respondent of allowing members of staff to “cash in” their holiday entitlement while continuing to attend work and be paid for that time at work also.