Mr B Rodd v GMB Leisure Ltd and Virtus Leisure Management Ltd: 3327823/2017
EMPLOYMENT TRIBUNALS
Case No 3327823/2017
Between
Mr B RoddClaimantGMB Leisure Ltd and Virtus Leisure Management LtdRespondent
Before
Employment Judge ChudleighIn person for claimantDate 17 May 2019
JUDGMENT
[1]The Employment Tribunal has jurisdiction to hear the claim against the Second Respondent.[2]The First Respondent made an unlawful deduction from the Claimant’s wages by failing to pay him the holiday pay to which he was entitled in the holiday year that commenced on 1 April 2017.[3]The business of the First Respondent transferred to the Second Respondent on 1 October 2017. The Second Respondent is therefore liable to the Claimant in respect of the unpaid holiday pay.[4]The Second Respondent is ordered to pay the Claimant the sum of £191.25 in respect of unlawful deduction of wages in relation to the Claimant’s holiday entitlement for the holiday year commencing on 1 April 2017 by the First Respondent.[5]The Claimant’s claim in respect of holiday pay for the period prior to 1 April 2017 is not well founded and is dismissed.[6]The Claimant’s claim in respect of unlawful deduction of wages arising from the failure to pay him enhanced rate for evening work from April 2016 onwards is not well founded and is dismissed. Page 1 of 7
REASONS
Conclusions
[1]The Claimant presented a claim against the First Respondent on 13 September 2017. The Second Respondent was joined to the proceedings on 21 February 2018 because the business of the First Respondent had transferred to the Second Respondent on 1 October 2017 pursuant to the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).
The issues
[2]The issues for the Tribunal were as follows: -2.1 Whether the Employment Tribunal has jurisdiction to hear the claim against the Second Respondent given that(1) the First Respondent was the employer when the claim was presented; and(2) the Second Respondent was only added as a Respondent on 21 February 2018 and therefore after the claim limit expired.2.2 Whether either of the Respondents is liable to the Claimant for an unlawful deduction of wages in respect of: - (a) Pay in respect of holiday pay in the period from 2010 to 30 September 2017; and (b) The failure to pay the Claimant enhanced rate for work that he undertook in the evenings.2.3 Whether, if either of the Respondents is liable to the Claimant, the amount of any deduction of wages. This will require consideration of whether there was any temporal limitation on the claim within the meaning of section 23(4)(A) of the Employment Rights Act 1996 (ERA).
Evidence
[3]I heard evidence from the Claimant, Mr David Britton (on behalf of the First Respondent) and Miss Louise Ford (on behalf of the Second Respondent). Findings of fact I made the following findings of fact.[5]The Claimant commenced employment at the Bucks Indoor Tennis Centre on 26 September 1995. His employer at that time was Bucks Tennis Limited.[6]The Claimant signed a contract of employment on 31 October 1995 and did not sign any contract of employment at any time thereafter, despite Page 2 of 7 being invited to do so. The contract provided for an hourly rate of pay to be reviewed annually in January. It also provided that arrangements for holidays should be made in consultation with the Tennis Centre Administrator and that no payment would be made for holidays.[7]On 1 January 2007, a company called Win Tennis Limited took over the Bucks Indoor Tennis Centre. On 19 February 2007, the Claimant was told that his hourly rate of pay would be £5.72 per hour (daytime) and £6.25 (evening).[8]The First Respondent took over the contract in April 2010.[9]The contract was then transferred to the Second Respondent on 1 October 2017. It was common ground that it was a relevant transfer within the meaning of TUPE.[10]During the entire period from 1995, the Claimant worked as a receptionist although he did undertake other duties at times in addition to his reception work.[11]The Claimant was entitled to holidays in accordance with the Working Time Regulations 1998.[12]During the time when the First Respondent held the contract at the Bucks Indoor Tennis Centre, the procedure for taking holidays was that members of staff were required to see whether any of their co-workers wished to cover them in the first instance. If they did not, then relief cover would be sought or Mr Britton or his son, Mr Guy Britton, would step in.[13]The Claimant did not take the annual holiday to which he was entitled. Indeed, in 2010 and 2011, he took no holiday at all. During the other years, and the years that followed, he took some holiday but did not take all the holiday to which he was entitled.[14]The First Respondent knew that the Claimant was not taking all the hours to which he was entitled but did not encourage him to make sure that he used his entitlement in each holiday year. This is a matter of concern because the Claimant ought properly to have been encouraged to take the holiday to which he was entitled.[15]However, in 2017, the Claimant took a significant amount of holiday for which he was not paid because, in the view of the First Respondent, he had not accrued the right to holiday. Mr David Britton in his evidence could not call the days off taken by the Claimant “holiday”. He insisted on calling them “time off”. It appears to me that from around June 2017, the Claimant realised that he had not taken all the holiday that he could have taken and that he was potentially going to be in difficulties recovering it. He raised a grievance about the matter in question and took a significant number of days’ holiday. Page 3 of 7[16]The First Respondent periodically provided notice to the Claimant with his wage slip that his pay was to increase. There were annual pay increases. There were different rates for daytime and evening up until 1 April 2016. The rate in 2015 had been £6.74 for day work and £7.00 for night work.[17]The requirements of the National Minimum Wage legislation were such that by 1 April 2016, the minimum the First Respondent had to pay was £7.20 per hour. As this represented an increase of 20p per hour on the night rate as well as an increase to the day rate, the First Respondent decided to pay the National Minimum Wage - £7.20 – for both day and night work. Consequently, the rate went up to £7.50 when the National Minimum Wage increased but again, this was a flat rate regardless of the shift.[18]On 26 June 2017, the Claimant raised a grievance about the failure on the part of the First Respondent to pay him an evening wage rate, and about untaken holidays. There were then a series of meetings between the parties.[19]The First Respondent considered that the Claimant was not entitled to transfer any hours of holiday that are untaken from year to year. The contract that the Claimant had refused to sign, but which the First Respondent operated for other employees did provide that holidays should be taken in the year in which the entitlement arises, and that holidays could not be carried forward to future years except at the discretion of the company.[20]The First Respondent disagreed that the Claimant was entitled to an enhanced rate of pay for evening work.[21]In the period immediately prior to the transfer to the Second Respondent, Miss Ford discovered, based on information supplied by the First Respondent’s accountants and from interviews with incoming staff, that the First Respondent had not given staff all the holiday to which they were entitled. Miss Ford emailed the First Respondent on 30 September 2017 stating that she had had the opportunity to examine the holiday data and found that there was money owing to staff in respect of holiday pay. She asked Mr David Britton how he would be making payments. Miss Ford enclosed with her email a copy of a document that was produced based on the accountant’s data setting out the discrepancy between holiday due and holiday paid for the period from April 2016 until 19 August 2017. She extrapolated forward to work out what figures were for the period to 30 September 2017.[22]Miss Ford calculated that the Claimant worked 1459.75 hours in the period from April 2016 to April 2017, accrued 176 hours of holiday, but was only paid for 98.25 – leaving a discrepancy of 77.75.[23]She also calculated that for the period from April 2017 until 10 August 2017, the Claimant had worked 581.75 hours, had accrued holiday of 70 Page 4 of 7 hours, but had only been paid for 63.5 hours, leaving a discrepancy of 6.5 hours that had not been paid for.[24]In the period from 20 August 2017 to 30 September 2017, Miss Ford calculated that the Claimant would have worked 158 hours and accrued 19 further hours of holiday entitlement.[25]In response to the email from Miss Ford on 30 September 2017, Mr David Britton wrote and signed a document stating as follows: “On behalf of GMB Leisure Ltd, I accept that GMB Leisure Ltd still owes staff various amounts of holiday pay. I agree that the sums calculated by Miss Lewis Ford of HR Focus and our accountants and contained in the email sent by Miss Ford to Guy Britton and myself earlier today represents the sums due. These sums will be paid to the staff directly by GMB Leisure Ltd before the end of October 2017.”[26]Despite the assurance given by Mr Britton, the First Respondent failed to pay any of the sums in question to the Claimant. Submissions on behalf of the parties[27]In her submissions, Miss Ford pointed out that the First Respondent had admitted owing the Claimant holiday pay but that it had failed to pay what was promised.[28]The First Respondent submitted that there was no obligation to pay a different and higher pay rate for evening work and that the Claimant had no contractual entitlement to anything more than the National Minimum Wage.[29]The Claimant said that he is owed money for his late shifts and untaken holiday. He felt that the First Respondent exploited him and that he was nothing more than cheap labour.
Conclusions
[30]The first issue for me to consider was whether the Tribunal had jurisdiction to entertain the claim against the Second Respondent. It is correct that the Second Respondent was not the employer at the material time. However, TUPE provides at Regulation 4(2)(a) that all the transferor’s liabilities under or in connection with any contract of employment transfer to the transferee.[31]In the circumstances, any liability on the part of the First Respondent in respect of the Claimant’s contract of employment would have transferred to the Second Respondent at the date of the transfer. Page 5 of 7[32]Miss Ford argued that the Employment Tribunal was wrong to add the Second Respondent as a party and that the amendment ought not to have been permitted. She relied on the decision of Trimble & Another v North Lanarkshire Council & Another UKEAT S/0048/12.[33]My view was that it was quite proper for the Tribunal to have added the Second Respondent to the claim as the liabilities of the First Respondent had transferred to it, and that in the absence of an appeal against that decision, I did not consider that it was appropriate to interfere with it. Moreover, it seemed to me that the matter was effectively a substitution rather than an amendment, because although the First Respondent remained in the proceedings, the reality was that the Claimant could only recover against one party. It was convenient to keep the First Respondent in the proceedings to assist with the findings of fact. Further or alternatively, there was no reason why an amendment should not have been allowed, and the balance of prejudice would overwhelmingly have favoured the Claimant.[34]It was common ground between the Claimant and the First Respondent that the Claimant had not taken all the holiday that he was entitled to throughout his employment. However, in 2017, the Claimant took a significant amount of holiday for which he was not paid.[35]There is a temporal limitation on the number of years an Employment Tribunal can go back with regard to a wages claim. Section 23(4)(A) of the ERA provides that a Tribunal can only go back two years. Further and in any event, the Working Time Regulations provide that there is no right to carry forward holiday accrued in one year but not taken – see Regulation 13(9)(a).[36]The Claimant did not have a contractual right to carry forward holiday. Accordingly, on the expiry of each leave year, he lost the right to holiday accrued in that year. There was no contractual or statutory right to carry holiday forward. The holiday year ran from April to March.[37]In the circumstances, the Claimant’s claim in respect of holiday accrued in the periods leading up to the end of March 2017 are not well founded. He was not entitled to carry forward his holiday entitlement the next leave year.[38]The situation however was different for the period from 1 April 2017 until 30 September 2017 – the new leave year. During that holiday year, the Claimant took a significant number of days off for which he was not paid.[39]It was for me to assess whether the Claimant should have been paid for all or some of that holiday.[40]On 30 September 2017, Mr Britton signed a document agreeing that the holiday pay calculations undertaken by Miss Ford were correct. In other words, he admitted that holiday pay was due. Page 6 of 7[41]Those calculations showed that in the year from 1 April 2017 until 30 September 2017 the Claimant had worked 739.75 hours, had accrued holiday of 89 hours, but had only been paid for 63.5 hours, leaving a discrepancy of 25.5 hours that had not been paid for.[42]The First Respondent ought properly to have paid the Claimant in respect of those hours as they were within his statutory entitlement. Mr Britton accepted that the Claimant had not been paid for 25.5 hours. In the circumstances, my finding was that the First Respondent underpaid the Claimant in respect of 25.5 hours of holiday that he took in the 2017 leave year for which he should have been paid as the holiday was properly accrued.[43]The Claimant’s rate of pay was £7.50 per hour. The Claimant is entitled to £191.25 in respect of taken but unpaid holiday (25.2 x £7.50). Liability for that sum transferred to the Second Respondent who is ordered to pay it to the Claimant.[44]I did not accept the Claimant’s case that he had a contractual right to a payment at an enhanced rate for evening work. I accepted his evidence that for a long period of time – that is, up until 2016 – he was paid more for evening work than for day work but from April 2016 onwards, the contractual rate of pay was the same for evening work and day work. In the circumstances, the Claimant’s claim in respect of the evening shift work was not well founded and was dismissed.
Conclusions
[1]The application by the first respondent for a reconsideration of the judgment promulgated on 21 May 2019 is refused as there is no reasonable prospect of the original decision being varied or revoked.[2]The application by the claimant for a reconsideration of the judgment promulgated on 21 May 2019 is refused as there is no reasonable prospect of the original decision being varied or revoked.[1]This matter was heard and determined on 8 April 2019. A judgment was delivered orally after the hearing and Reasons were promulgated on 21 May 2019.[2]One of the claims made by the claimant was in respect of holiday pay. The decision was that the claimant was entitled to holiday pay for the holiday year commencing 1 April 2017. The second respondent (who was liable pursuant to the provisions of the Transfer of Undertakings (Protection of Employment) regulations 2006) was ordered to pay the claimant £191.25 in respect of the claim for this period.[3]By letter dated 28 May 2019 the first respondent applied for a reconsideration of the judgment, it was said that the basis that the original judgment had been based on incorrect assumptions. It is maintained that the calculations leading to the decision that the claimant was owed £191.25 in respect of holiday pay were wrong as the claimant had been paid all the holiday pay he was entitled to.
Findings of fact
[4]Under rule 70 of the Employment Tribunal Rules a party may request a reconsideration where it is necessary in the interests of justice.[5]In essence the first Respondent is seeking to challenge the findings of fact relating to the payment of holiday pay to the claimant as set out in paragraphs 41 to 43 of the Reasons. The respondents had ample opportunity at the hearing to advance their cases. It is impermissible for a party subsequently to be afforded a second chance to argue their case. There was evidence before the tribunal supporting the conclusion that holiday pay was due.[6]The application by the first respondent is therefore refused. There is no reasonable prospect of the original decision being varied or revoked.[7]The claimant made an application for a reconsideration on 3 June 2019 which was received on 4 June 2019. He makes a variety of allegations about the conduct of the hearing on 8 April 2019 and seeks to challenge various findings of fact relating to his claims for holiday pay and his claim in respect of an alleged failure by the first respondent to pay him at an enhanced rate for evening work from April 2016 onwards.[8]The allegations regarding the conduct of the hearing are not well founded. Firstly, all witnesses were required to either given an affirmation or swear an oath on a holy book, including Mr David Britton. Secondly, any issue with Mr Britton’s hearing difficulty was adequately accommodated within the hearing and no unfairness to the claimant resulted.[9]In so far as the complaint about the findings of fact is concerned, like the respondents, the claimant is bound by the findings made on 8 April 2019 and is not entitled to a “second bite at the cherry”.[10]The application by the claimant is refused. There is no reasonable prospect of the original decision being varied or revoked.