Employment Judge A JonesMs J Stewart for claimantWife for claimantMr C Harrington (instructed by Solicitor) for respondentDate 19 April 2024
JUDGMENT
The claimant’s claims are dismissed.
REASONS
[1]The claimant submitted a claim on 13 December 2023 alleging that the respondent had failed to pay him in lieu of annual leave to which he said he was entitled between his suspension form work in July 2020 and his resignation in August 2023. He also claimed that the respondent had failed to pay him in lieu of additional hours he had worked in 2020, in respect of which he said he was entitled to take time off in lieu.[2]The claimant had not specified the legal basis of his claims. The respondent had made some efforts to encourage the claimant to clarify the basis of his claims, but by the time of the hearing, his claims remained unspecified.[3]The case was listed for a 2-hour hearing but in the event lasted for over 3 and half hours. The claimant was represented by his wife who is also a regional organiser for the respondent. He gave evidence and called one witness, Ms Smith, whose evidence was of no value to the issues to be determined. The respondent led evidence from its Head of HR and Employee and Relations.[4]At the commencement of the hearing, I sought to clarify the nature of the claims. I asked the claimant’s representative to specify whether the claim in relation to payment in respect of time off in lieu was based on contract or it was being alleged that this amounted to an unlawful deduction from wages. It was said that the claim was based on contract and I asked for clarification as to the contractual term being relied upon. No term could be identified. It was suggested that it was custom and practice for a payment in respect of time off in lieu which had not been taken to be made on termination of employment. However, there was no documentary or oral evidence being advanced to support that allegation.[5]I then sought to clarify the claim relating to holiday pay. It was said that this was based on statute and contract. There was no reference to any specific contractual provision. In addition, no reference was made to the specific provisions of the Working Time Regulations being relied upon, if that was in fact the legislation being relied upon. While I was mindful that the claimant was not being represented by a solicitor, I was also aware that both he and his wife had been regional organisers for the respondent Union for many years.[6]I also sought to clarify the relevance of a witness, given that the witness remained in employment but was said to be able to speak to the respondent’s relevant practices in relation to her situation.[7]There was a short adjournment to allow the claimant to consider whether given what was said, he wished to insist on his claim in relation to a payment in respect of time off in lieu and also to consider whether it was necessary to call the witness who had been identified. After the adjournment, the claimant’s representative indicated that the claim in relation to TOIL would not be withdrawn, albeit it was recognised that the argument only related to custom and practice and ‘not much would be made of it’. It was also said that Ms Smith, the witness would still be called.[8]The witnesses who gave evidence all did so in a straightforward manner. Having considered the evidence, the documents to which reference was made and the oral submissions made by the parties, the following facts were found to have been established. Findings in fact[9]The claimant was an area organiser for the respondent and had worked for them for over 20 years. While for the majority of his employment, he had worked on a full-time basis, he had reduced his hours to 17.5 per week from September 2017.[10]The respondent operated a practice of staff being able to take time off in lieu in respect of hours worked over their contractual requirement. The respondent has a policy called Flexible Working Policy which indicated that in terms of time off in lieu, any additional hours should normally be taken within one month. Although the claimant suggested that this policy did not apply to him, the Tribunal found that it did as there was no evidence about any other basis on which to establish that he would be entitled to time off in lieu.[11]The claimant worked additional hours in the weeks following restrictions being imposed by the government in relation to the pandemic, from March 2020 to April 2020. At that time, he asked whether he could revert to full time working for a period. That request, which was passed to the Assistant General Secretary was declined. The claimant’s manager was instructed to discuss with the claimant how he could manage his hours to remain within his contracted hours.[12]There was no agreement between the claimant and Mr Kirby, his manager that he could accrue time off in lieu which could be paid back post pandemic.[13]The claimant was suspended from work on 23 July 2020 and did not return to work.[14]During his suspension, the claimant took annual leave in every leave year prior the termination of his employment. He informed Mr Kirby who was his initial point of contact and then Mr Farmer, who was the Director of HR for the respondent once Mr Kirby had retired of the dates on which he was to take leave.[15]The claimant had a holiday entitlement of 154 hours per year and a pro rata entitlement to bank holidays.[16]The claimant’s contract provided that he could carry forward up to 5 day’s annual leave. The respondent’s policy was that while in some circumstances annual leave in addition to five days could be carried forward, this would require the agreement of the Assistant General Secretary.[17]The Assistant General Secretary was never asked to agree to the claimant carrying forward any additional annual leave during the period of his suspension.[18]The claimant was paid in lieu of annual leave not taken in the last year of his employment. Discussion and decision[19]The claimant did not produce any documentary evidence to demonstrate that there was a binding contractual agreement between him and the respondent that he could be paid in lieu of additional hours worked during the pandemic. The Tribunal found that it would be extraordinary for a manager who would have had to refer any such matters to an Assistant General Secretary to have reached such agreement. Moreover, given the claimant was a regional organiser with more than 20 years’ experience, the Tribunal concluded that had such agreement been reached, the claimant would have ensured that this was committed to writing. There was nothing in the policy regarding time off in lieu to suggest that any payment would be made to employees whose employment had terminated and had not been able to take any hours which had accumulated. The Tribunal found the claimant’s claim in this regard to be entirely speculative and wholly without merit.[20]The claimant’s claim in respect of annual leave appeared to be that he was entitled to accrue annual leave over a 3-year period during which he was suspended and be entitled to be paid in lieu of any leave he had not taken on termination of his employment. His position was that he was entitled to carry forward any unused leave from one year to the next even though it was more than 5 days. He did not specify the legal or contractual basis of his claim and appeared to suggest that this was an agreement reached with Mr Kirby at some unspecified time.[21]The Tribunal was mindful that there have been many authorities which have addressed the entitlement of workers to holiday pay on termination of employment. Many of those authorities related to circumstances in which a worker was off sick or otherwise unable to take annual leave.[22]In the present case, the claimant was able to and indeed did take annual leave during each leave year. There was no suggestion that his ability to take leave was in any way restricted. While he indicated that he was signed off sick for 2 months when had suffered a mini-stroke and was again signed off for a period prior to his resignation, he did not suggest that this in any way limited his ability to take annual leave.[23]In any event, the claimant’s contract was quite clear that he could carry up to 5 days’ annual leave into the following leave year. He took leave in each leave year and gave no explanation as to why he did not use all the leave to which he was entitled in each leave year or raise any issue with his point of contact that he had been unable to take leave. There was no documentary evidence at all, despite the respondent having indicated that it had carried out a number of searches of its email system to determine whether there had been any emails between the claimant and Mr Kirby or Mr Farmer who has also since retired.[24]The claimant’s position was that there would have been emails between him and others which he was not able to access. He said that the respondent had changed its systems and that he was never provided with an UpToDate laptop. However, he also said that he was able to receive emails on his phone and did check his phone from time to time. The Tribunal is satisfied that if the claimant had been aware of specific email communications between him and others setting out agreement regarding these matters, it would have been identified by him. It appeared instead that the claimant was seeking to recover diary entries to demonstrate that he had worked additional hours prior to his suspension, which was unrelated to his claim for holiday pay.[25]The Tribunal gave consideration to Revenue and Customs Commissioners v Stringer 2009 ICR 985, HL, and Smith v Pimlico Plumbers Ltd 2022 IRLR 347, CA and considered the extent to which either case was relevant in relation to the claimant’s circumstances. The claimant had not specified whether he was relying on the Working Time Regulations or seeking to argue that there was a series of deductions in relation to his holiday entitlement and therefore the Tribunal considered his claim both in relation to the Working Time Regulations and as a continuing unlawful deduction from wages.[26]In either circumstance, the Tribunal found that a claim had not been made out. The claimant had taken annual leave in each leave year, there was no suggestion that there were any restrictions on him in that regard. He was aware who he should contact to take annual leave and his request was granted on each occasion. He did not give any evidence to suggest that he was limited in any way in using his full annual leave entitlement in each year. There was no evidence to suggest that he had contacted anyone to ask that any remaining entitlement be carried forward to the following year. There was nothing in his contract of employment which would suggest that he would be entitled to carry forward any unused leave beyond the 5 days permitted. Permission would have to have been sought and obtained from the Assistant General Secretary and there was no suggestion that she was asked for a view on such matters.[27]Therefore there was no contractual entitlement to carry leave forward. In each year, leave had been taken but not the entirety of the leave entitlement. There was no barrier to taking leave and the claimant was aware of his entitlement. There was therefore no breach of Regulations 13, 16 or 30 of the Working Time Regulations, an unlawful deduction from the claimant’s wages in terms of section 13 Employment Rights Act 1996 or a breach of contract on the part of the respondent in failing to pay the claimant any accrued but untaken holiday pay in respect of 2020, 2021 or 2022.[28]In these circumstances, the claimant’s claims fail and are dismissed. A Jones[1]The claimant submitted a claim on 13 December 2023 alleging that the respondent had failed to pay him in lieu of annual leave to which he said he was entitled between his suspension form work in July 2020 and his resignation in August 2023. He also claimed that the respondent had failed to pay him in lieu of additional hours he had worked in 2020, in respect of which he said he was entitled to take time off in lieu.[2]A judgment was promulgated on 5 March 2024 dismissing the claims. The respondent made an application for expenses on 11 March. The application was made on the basis that the claimant’s claims did not have any reasonable prospects of success and/or that his conduct was vexatious or otherwise unreasonable. A schedule of the expenses incurred was provided which amounted to £8496.00 including vat.[3]The claimant respondent by email on 13 March setting out the basis of his objection to an award of expenses being made. On that date, the claimant also indicated that he was content for the matter to be determined without a hearing. The claimant subsequently provided information in relation to his income. The claimant is now retired and receives a pension of around £1500 per month. He has no savings.[4]The Tribunal wrote to parties on 13 March indicating that if the matter was to be determined without a hearing, then then any further representations should be provided no later than 27 March.[5]The respondent provided comment on the claimant’s objection to the award of expenses in an email of 26 March. The respondent also confirmed that it was content for the matter to be dealt with in chambers.[6]The claimant provided further submissions in an email of 27 March.[7]Parties were informed that the matter would be considered by the Employment Judge on the basis of the written representations.
Relevant law
[8]Rule 76 Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 sets out when and order for expenses may be made and rule 78 sets out the amount of an award which might be made.[9]As was highlighted by the Court of Appeal in Yerrakalva v Barnsley Metropolitan Borough Council and another 2012 ICR an award of expenses is an exception and not the rule in employment cases. In that case the court also cautioned that in determining whether or not to exercise its discretion to award expenses the Tribunal should look at the whole picture of what happened in the case and consider whether there was any unreasonable conduct on the part of a claim and if so, what that conduct was and what effect it had.[10]A Tribunal should also take into account when determining whether to exercise its discretion that the purpose of any award is to compensate the party in whose favour the award is made not to punish the party against whom the award is made.[11]In addition, it is open to a Tribunal to have regard to the ability of a party to pay any award although a Tribunal is not obliged to take this into account (Rule 84).[12]Finally, a Tribunal has wide discretion to make an award of expenses but should ensure that it takes into account only relevant matters in exercising that discretion. Discussion and decision[13]In the present case, the Tribunal has taken into account the following matters.[14]The claimant was not legally represented in these proceedings, but both he and his wife who latterly represented him were very experienced officers of the respondent Trade Union. While the claimant’s position was that he did not provide legal advice to members or represent them, he did have knowledge of significant issues such as Working Time provisions.[15]The Tribunal did not accept as credible the claimant’s position that he understood that his claim would have been struck out by the Tribunal at an early stage if it did not have merit.[16]The claimant had submitted two claims, one for holiday pay and one which related to an allegation that he should have received payment for additional hours he said he had worked in 2020.[17]There had been no preliminary hearings in this case. However the respondent had made requests of the claimant to clarify his claim in its grounds of response on a number of occasions, and reiterated what it perceived to be the flaws in the claimant’s claims in a letter to the claimant of 26 January. The respondent had made an offer to the claimant in the letter of 26 January that if he withdrew his claims no application for expenses would be made. The claimant was therefore aware of the respondent’s intention to make an application for expenses from that time.[18]The claimant’s response to the respondent’s letter of 26 January was to write to the Tribunal and not copy the respondent indicating that he was being asked for information from the respondent and ‘basically my whole case just now rather than tell all this to the judge, but I haven’t been sent an order from yourselves to do that, to give them all this detail.” The claimant was referred to ACAS by the Tribunal administration and it was suggested that he may wish to seek advice on the matter. The claimant also wrote to the respondent indicating that it “is for the Tribunal to judge at the hearing” whether the claims were without merit. The respondent had provided a detailed analysis of why it was said that the claims were without merit.[19]The respondent’s agent and claimant exchanged further correspondence in which the respondent continued to assert that the claimant’s claim was not specified and was without merit.[20]The Tribunal is of the view that the claimant’s application for payment in respect of additional hours he said he worked in 2020, was hopeless and entirely speculative. In addition, the claimant was asked at the commencement of the Tribunal hearing whether he wished to persist with that complaint given that he was unable to provide any evidence regarding a contractual basis for the claim. After an adjournment, the claimant’s representative indicated that the claimant wished to proceed with the case, although the Tribunal noted that the claimant appeared to be suggesting he did not want to proceed. The claimant’s representative indicated that ‘not much would be made of it.’ The claimant’s position appeared therefore to be that he accepted the claim had no merit but that he would proceed with it nonetheless. That amounted to unreasonable conduct.[21]Taking these factors into account the Tribunal concluded that the claimant’s conduct in persisting with his application in particular in relation to unpaid wages relating to 2020 was unreasonable conduct. The claimant was aware that he had no evidence whatsoever to substantiate any such claim and had not set out any legal basis for a claim. These matters had all been highlighted to the claimant on a number of occasions by the respondent and the claimant had been warned that the respondent might seek to recover its expenses, yet persisted with his claims.[22]Therefore even if it could be said that the claimant’s claim relating to holiday might at least have been clarified to some extent, the claim relating to being paid for additional accrued hours some 3 years prior to his resignation was wholly without merit.[23]The Tribunal has also taken into account that the claimant has no savings and a pension of around £1500 per month.[24]The Tribunal concluded that the claimant’s claim in relation a payment for time off in lieu was hopeless and had no reasonable prospects of success and that the claimant’s conduct in persisting with that claim in circumstances, where he acknowledged that ‘not much would be made of it’, was unreasonable conduct.[25]In these circumstances, the Tribunal is of the view that it would be appropriate for the claimant to be required to pay to the respondent an element of the legal expenses incurred by it in defending the claimant’s claims. The Tribunal is of the view that it would be appropriate to order the claimant to pay to the respondent the sum of £1500 towards the expenses incurred by it in defending these proceedings. A Jones