Ms C Kyriakidou v Hello Fresh Central Ltd: 4123418/2018
JUDGMENT
The Judgment of the Tribunal is that the claimant is due the sum of £979.85 by way of payment in respect of holiday leave accrued but not taken at date of termination of her employment with the respondents. The respondents are ordered to pay that sum to the claimant.REASONS
[1]This case called for hearing at Edinburgh on 23 April 2019. The respondents had not lodged form ET3. They were not present and were not represented. The claimant was present. She was represented by Mr McKay. She gave evidence. Productions were lodged on her behalf.[2]The claimant was employed between December 2015 and July 2018 by an entity which trades as Cook and Indies World Buffet. During the time of her employment, the limited company which used that trading name changed. Initially it was CI Diamonds Limited. It then became Q Central Limited, then E.T. Z4 (WR) Fresh Central Limited and ultimately Hello Fresh Central Limited. When the entity operating as Cook and Indies World Buffet changed, the trading name remained the same. The staff remained the same as did all the assets. It therefore seemed to me that there was a TUPE Transfer and that the claimant has continuity of employment with the entity operating at time of termination of her employment therefore being liable for any sums due prior to that date.[3]The claimant was a waitress operating on a zero hours contract. She is a student and worked weekends and holiday periods including Christmas, Easter and summer. During extended holiday periods, she would effectively work on a full time basis. During her employment, the claimant took holidays from time to time in particular during summer and Christmas times. On some occasions during those holiday times, she sought holidays but was refused permission to take holidays. Her claim is for holiday pay due in the two year period prior to presentation of her claim. It has been calculated on the basis of her payslips and reflects the hours which she worked, the hourly rate of pay and the holiday pay rate on the basis of the calculation being 12.07% that being reflective of the proportion of annual leave involved.[4]Using that calculation, details of which appeared at tab 2 of the productions, the sum due to the claimant is £979.85. The claimant did not receive any payment whatsoever in respect of holiday pay although she requested that when she left employment. There was no evidence that a period of more than three months had been involved between any period when holiday leave had been taken. The respondents are therefore ordered to make payment to the claimant of £979.85 by way of holiday pay, the claimant being a worker is entitled to be paid in respect of leave taken.