Ms M Hornett v Norwegian Air Resources UK Ltd (in Voluntary Liquidation) and Secretary of State for Business Energy and Industrial Strategy (Redundancy Payments Service): 3207915/2021

EMPLOYMENT TRIBUNALS

Case No 3207915/2021

Between

Ms M HornettClaimant

Norwegian Air Resources UK Ltd (in Voluntary Liquidation) and Secretary of State for Business Energy and Industrial Strategy (Redundancy Payments Service)Respondent

Before

Employment Judge C Lewis

Mr C Barklem - Counsel for claimant

Not represented for respondent

Date 10 February 2023

JUDGMENT

[1]The Tribunal has jurisdiction to hear the claim under s 188 of the Employment Rights Act 1996. In the particular circumstances of this case it was not reasonably practicable for the Claimant to have brought the claim within three months after the date of the decision of the Secretary of State was communicated to the Claimant and it was brought within a reasonable period thereafter.

[2]The Claimant is owed further payments in respect of holiday pay under s 184 (1) (c) of the Employment Rights Act 1996.

[3]A Final hearing has been listed on 17 April 2023 by CVP to determine the amounts owed. Case management orders in respect of that hearing are contained in a separate document. REMEDY JUDGMENT 1. The Claimant is entitled to payment in the sum of £1235.15 in respect of holiday pay under s 184 (1) (c) of the Employment Rights Act 1996 as set out below:1.1 Outstanding holiday accrued in the period 1 March to 31 December 2020 - 21 days at £70.38 net per day = £1477.98.

1.2 Outstanding holiday accrued in the period 1 to 31 January 2021 – 2.25 days at £70.38 net per day = £158.35.

1.3 Total outstanding holiday pay from the period of 12 months before date of termination of employment is therefore the sum of £1636.33.

1.4 Less payments already received from the Secretary of State (redundancy Payments Service) in the sum of £401.18.

1.5 Total outstanding in respect of holiday pay is the sum of £1235.15. JUDGMENT having been sent to the parties on 20 April 2023 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013.

REASONS

[1]These written reasons for the remedy judgment sent to the parties on the 20 April 2023 are provided following the request by the Secretary of State.

[2]The parties did not attend the remedy hearing. The Respondent did not attend or make written representations. The Claimant provided written representations, a witness statement and a schedule of loss in advance of the hearing and her attendance was excused. The remedy hearing was originally listed for the 17 April but was postponed until the 18 April due to lack of judicial resources on the 17 April 2023.

[3]The remedy hearing was listed following a hearing on 10 February 2023 at which judgment was made in favour of the Claimant in respect of time limits. A judgment on jurisdiction and liability was issued on 15 February 2023, finding that her claims had been brought in time and that the Tribunal had jurisdiction to hear the claim under sections 184(1)(c) and 188 (1)(b) of the Employment Rights Act 1996 for outstanding holiday pay. The Claimant was found to be owed further payments in respect of holiday pay.

[4]The remedy hearing was heard in the parties’ absence. The Employment Judge was satisfied that the Claimant had provided the relevant information required to calculate the amount of outstanding holiday pay. Findings of fact Leave entitlement

Findings of fact

[5]The Claimant’s employment started on the 4 September 2017. Under her contract of employment she was entitled to 28 days of annual leave per annum and her holiday year ran from 1 January to the 31 December.

[6]The Claimant was placed on furlough in March 2020 and then commenced maternity leave on the 19 November 2020. Her effective date of termination was 29 January 2021. The First Respondent went into liquidation. The Second Respondent, the Secretary of State for Business, Energy and Industrial Strategy, accepted that there was liability to pay outstanding payments of holiday pay. The Claimant disputes that the entitlement was correctly calculated by the Secretary of State and claims further payments in respect of the outstanding holiday pay accrued at the date of termination.

[7]The Claimant took seven days annual leave in 2020. The First Respondent had agreed with the Claimant that she could carry over her remaining 21 days until the end of her maternity leave, that is into the leave year 2021. I find that at the date of the termination of employment on the 29 January 2021 the Claimant was entitled to payment for holiday pay accrued in the holiday year 2021 and for the 21 days carried over from the previous year as a result of her maternity leave, with the agreement of her employer. The Claimant was therefore owed an outstanding 21 days carried over from the year 2020 plus, 2.25 days accrued in January 2021, being a total of 23.25 days of holiday entitlement outstanding at the effective date of termination. Pay rates

[8]The Claimant’s net day rate claimed was £70.38. the Claimant provided payslips from the pre-COVID and pre-furlough period for October, November and December 2019.

[9]The payslip provided by the Claimant were dated 25 October 2019, 25 November 2019 and 25 December /2019 and covered the 12 weeks prior to her taking maternity leave on the 19 November 2020. They were relied on to give a fair reflection of the Claimant’s usual income before the impact of COVID-19 and furlough.

[10]On the 25 February 2021, the Second Respondent calculated the Claimant’s figure for outstanding holiday pay as £1,907.24. On the 3 March 2021, the Second Respondent used the figure of £255.10 per week based on a 52 week average.

[11]I am satisfied that the correct figure for calculation for holiday pay bearing in mind the statutory cap on a week’s pay at £544 at the date the claim was issued, are as set out below.

[12]I have accepted the figures provided by the Claimant in her schedule of loss. The Claimant was paid a daily per diem rate on top of her normal pay. I am satisfied this amount ought to have been included in the calculation of her holiday pay. The per diem formed part of the usual pay which would have been paid if she had worked those days. Her holiday pay ought to be calculated to reflect the usual pay that she would have been expected to have been paid had she been at work. I am satisfied the holiday pay payable to the Claimant through the period when she was on maternity leave ought to be calculated on the basis of her normal pay.

The law

[13]I am satisfied that this calculation is in accordance with the calculation of a week’s pay provided for in Part XIV, Chapter II of the Employment Rights Act 1996.

[14]Section 221 applies where there are normal working hours. Section 221(2) provides that subject to section 222, if the employees remuneration of employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of week’s pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours.

[15]Section 221 (3) provides that subject to section 222, if the employee’s renumeration for employment in normal working hours (whether by the hour or week or other period) does vary with the amount of work done in the period, the amount of a week’s pay is the amount of remuneration payable by the employer to the employee in respect of the period of twelve weeks ending -(a) where the calculation day is the last day of a week, that week, and

(b) otherwise, with the last complete week before the calculation date. [The reference period of 12 weeks was however extended to 52 weeks.] (4) In this section references to remuneration varying with the amount of work done includes remuneration which may include any commission or similar payment which varies in amount. (5) This section is subject to sections 227 and 228.

[16]Section 223 (2) provides that for the purposes of calculating the average over the period of twelve weeks, where for any of the 12 weeks no remuneration was payable within those weeks, account should be taken of remuneration in earlier weeks so as to bring the number of weeks taken into account up to twelve weeks.

[17]Section 224 provides in similar terms for where there are no normal working hours, the average week’s remuneration is to be calculated by reference to a twelve week period and for earlier weeks to be brought in where no work was carried out in any of those twelve weeks.

[18]Section 228 provides for new employment and other special cases. Section 228 (1) provides that in any case in which the employee has not been employed for a sufficient period to enable a calculation to be made under the proceeding provisions, the amount of week’s pay is the amount which fairly represents a week’s pay. Subsection (2) provides that: In determining that amount, the employment tribunal (a) shall apply as nearly as may be such of the preceding provisions of this Chapter as it considers appropriate, and (b) may have regard to such of the considerations specified in subsection (3) as it thinks fit. (3) The considerations referred to in subsection (2)(b) are- (a) any remuneration received by the employee in any respect of the employment in question, (b) the amount offered to the employee as remuneration in respect of the employment in question, (c) the remuneration received by other persons engaged in relevant comparable employment with the same employer, and (d) the remuneration received by other persons engaged in relevant comparable employment with other employers.

Conclusions

[19]The payslip provided by the Claimant were dated 25 October 2019, 25 November 2019 and 25 December 2019 and covered the 12 weeks prior to her taking maternity leave on the 19 November 2020. They were relied on to give a fair reflection of the Claimant’s usual income before the impact of COVID-19 and furlough. I am satisfied that had the Claimant not been on maternity leave, the wage slips provided from the previous year 2019 were a fair reflection of what she would have earned and therefore to prevent the Claimant from being disadvantaged by virtue of having taken maternity leave I am satisfied that I should calculate her weekly pay by analogy with the provision of section 228 where an employee has not worked sufficient days or weeks in the relevant calculation period. I am satisfied that this is a fair representation of a week’s pay and that is the basis for calculating the Claimant’s net pay at £70.38 per day for the purposes of calculating her holiday pay entitlement at the relevant period.

[20]The average weekly figure on which the holiday pay calculation is based is therefore £351.89 which gives the daily rate of £70.38. 21 days, accrued and untaken in 2020 x £70.38 = £1,477.98; 2.25 days, accrued but not taken in 2021, x £70.38 = £158.35. The total accrued and outstanding at the effective date of termination is £1,636.33. From that figure, I have deducted the amount already received from the Secretary of State. The Secretary of State made two payments one of which was in the sum of £340.26 and the other was in the sum of £60.92, bringing a total of £401.18.

[21]The total figure outstanding is therefore £1,235.15 and that is the amount that I find the Claimant is owed. Apology

[22]The Employment Judge sincerely apologises for the delay in sending out the written reasons in this case. This is in large part due to the lack of judicial time and allocation of scarce judicial resources to other cases where parties have not received an outcome or where case management orders are required to progress the case.