Ms S Mitev v G4S Secure Solution (UK) Ltd: 6030261/2025

EMPLOYMENT TRIBUNALS

Case No 6030261/2025

Between

Ms S MitevClaimant

G4S Secure Solution (UK) LtdRespondent

Before

Employment Judge T Perry

In person for claimant

Date 2 February 2026

JUDGMENT

[1]The Claimant’s claim for deduction from wages in respect of failure to properly pay holiday pay for 2023 to 2025 in accordance with the Working Time Regulations 1998 is well founded and succeeds.

[2]The Respondent is ordered to pay the Claimant the gross sum of £444.25 in respect of holiday pay for 2025 only (all other sums due having been repaid in September 2025). The Claimant may be liable to deductions for tax and national insurance in respect of this sum (unless otherwise deducted at source by the Respondent).

REASONS

[1]The Tribunal was provided with a bundle of documents running to 200 pages. The Claimant provided password protected payslips for December 2025 and January 2026. However, I was unable to access these because of the password protection.

[2]The Claimant gave evidence from a written witness statement. Having indicated in an email in advance that it would object to the Claimant’s evidence, which had been provided late on, the Respondent did not pursue this point before me. The Claimant did not challenge the evidence of the Respondent’s witness, Mr Keith Weir, the Respondent’s Contract Manager for Shell.

[3]The Tribunal had the benefit of written submissions from the Claimant and heard further brief oral submissions from both sides.

The issues

[4]The Claimant says he is owed holiday pay for 2023, 2024 and 2025. In short, the areas of dispute are as to what is the correct entitlement for these years and whether the correct sums have been paid both under contract and under statute. The Law Annual leave – Working Time Regulations 1998 and Employment Rights Act

The Law

[5]The entitlement to annual leave is contained in regulations 13 and 13A of the Working Time Regulations 1998, which provide that workers are entitled to four week’s annual leave in each leave year and a further 1.6 weeks’ additional leave.

[6]Under regulation 13(3) the leave year can be set by the terms of a relevant agreement (ie employment contract).

[7]Under regulation 13(5) the entitlement is pro-rated during the first year of employment by reference to the joining date.

[8]The basic entitlement to holiday pay is given by regulation 16, which reads, in so far as it is relevant: 16.—(1) A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under regulations 13, 13A … at the rate of a week’s pay in respect of each week of leave.

[9]Regulation 16 refers to sections 221-224 Employment Rights Act 1996 as to the calculation of a week’s pay. These provisions predate the Directive and do not conform to its requirements.

[10]Under section 221(3) ERA 1996 for employees with normal working hours “if the employee’s remuneration 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 for the number of normal working hours in a week.” This is stated to be calculated on an average based on a 12-week reference period. However, the 12-week reference period was extended to 52 weeks with effect from 6 April 2020 for the purposes of holiday pay calculations so as to better reflect the pay of those workers whose hours fluctuate over the course of a year.

[11]Certain payments used to be excluded under sections 221-224 ERA 1996 leading to underpayments of holiday pay. It has now been established by various cases (including Bear Scotland and ors v Fulton and ors

2015 ICR 221

and East of England Ambulance Trust v Flowers and ors

[2019] EWCA Civ 947

) that both compulsory and voluntary overtime should be included in the determination of a week’s pay.

[12]However, sections 221-224 ERA 1996 can also lead to overpayments. This can arise in particular if a worker is engaged on a school term-time-only contract. If the contract is a continuing engagement (as distinct from separate contracts for the duration of each school term), the individual is entitled to 5.6 weeks' paid annual leave under WTR regs 13 and 13A. If the rate of pay is determined by hours actually worked, and in particular if these vary from week to week, holiday pay will be based on pay for the 12 (then, now 52) most recent working weeks. Since a typical school year has only 35–40 weeks, application of this formula results in an overpayment for holidays.

[13]That was the position in Brazel v The Harpur Trust

;

. The claimant was a part-time music teacher, teaching almost exclusively during term times, paid at an hourly rate and with her hours varying from week to week. She was employed on an indefinite contract, which continued during each school holiday. She had both a statutory and a contractual right to 5.6 weeks' leave per year, which she was required under her contract to take during school holidays. In practice, she worked for about 32 weeks a year. The employers argued that her holiday pay should be calculated so that the total pay was 5.6/46.4 of her pay for the holiday year (the fraction being based on 46.4 being the number of non-holiday weeks in the year).

[14]The EAT, Court of Appeal and Supreme Court all held that was wrong and that Mrs Brazel was entitled to the full 5.6 weeks' annual leave per year under the Working Time Regulations, notwithstanding that it led to a disproportionately greater leave requirement than her full-time colleagues. The requirement was to identify a week’s pay under sections 221-224 ERA 1996 and multiply it by 5.6.

[15]The effects of the Brazel judgment were reversed with effect for leave years beginning on or after 1 April 2024 and the introduction of the new regime applicable to 'irregular hours' and 'part-year' workers as set out in Working Time Regulations 15B–15F. These new rules effectively accrue holiday pay based on a 12.07% basis of the number of hours worked in any pay period and allow rolled up pay.

[16]Any ET1 presented on or after 1 July 2015 will be limited to deductions made within 2 years before presentation of the claim under ERA s23(4A).

[17]There may be a more generous formula for holiday pay under the contract, and regulation 16(4) makes it clear that the statutory formula does not derogate from any contractual entitlement. Deductions from wages – Employment Rights Act 1996

[18]Workers have the right to bring claims to the Employment Tribunal in respect of deductions from wages under section 28 ERA 1996. The Tribunal only has jurisdiction to consider claims brought within 3 months of the date of the deduction or the last of a series of deductions. There is scope for the Tribunal to extend time if it was not reasonably practicable for the claim to be issued in time and where it is in fact issued within a reasonable further period.

[19]The right not to suffer unauthorised deductions is set out in section 13 ERA 1996.

[20]Under section 27(1) ERA 1996 wages includes holiday pay.

[21]Where a claim is well founded a Tribunal shall make a declaration to that effect under section 24 ERA 1996. However, under section 25(3) ERA 1996 a Tribunal shall not order repayment of sums if it appears those sums have already been paid to the worker.

The Facts

[22]The Claimant started employment with the Respondent on 13 September 2023. The Claimant remains employed by the Respondent.

[23]The parties entered into an employment contract, which for the purposes of the WTR is a relevant agreement. The material terms of this agreement are:a. The holiday year runs with the calendar year 1 January to 31 December;

b. Entitlement to holiday pay during the first part year accrues pro rata based on business days remaining in the holiday year;

c. The number of holidays is calculated in accordance with the Working Time Regulations;

d. The maximum entitlement is 5.6 weeks of which 1.6 relates to bank holidays whether worked or not;

e. The Claimant’s weekly contracted hours from the second week of employment were said to be an average of 42 a week or 182 per calendar month;

f. Holiday entitlement is based on weekly contracted hours with the example of 42 weekly contracted hours leading to 236 hours’ holiday a year; and

g. The rate of pay is the highest of four amounts: national minimum wage, minimum Employee Rate (a term not otherwise referred to in the contract), an average site rate for the 4 weeks prior to the annual leave, and average pay from the last 52 weeks prior to annual leave (excluding weeks with nil payment and taken across a maximum reference period of 104 weeks).

[24]The Claimant’s working pattern was based on an 8-week cycle. It was 5 days (Monday to Friday) followed by 4 days off, then 5 nights (Wednesday to Sunday) followed by 5 days off. The cycle repeated every 56 days during which time the Claimant worked 28 shifts of 12 hours each, totalling 336 hours. This equates to an average of 42 hours a week.

[25]However, the Claimant regularly worked additional overtime shifts, for which he was paid separately.

[26]The Claimant was paid double pay for working on a bank holiday.

[27]I had before me no information about the dates of annual leave the Claimant actually took during 2023 or 2024. In respect of 2025, I had no information before me about the number of days annual leave the Claimant took or the dates annual leave was taken before November 2025. I did see evidence of the Claimant being paid £2,070.36 as holiday pay on 15 September 2025. I saw evidence that the Claimant took annual leave on at least 5 and 6 November 2025 and a payslip for November 2025 shows the Claimant being paid £920.16 as holiday pay.

[28]I can see the following from the Respondent’s internal calculations for 2023:a. The Claimant’s rate of pay in 2023 was £17.62. The Claimant did not seek to challenge this; and

b. Between 13 September and 31 December 2023, the Claimant worked a total of 736 hours, which the Claimant did not seek to dispute. The Respondent calculated this as accruing 89 hours holiday, which was 18 hours in excess of the 71 hour entitlement the Respondent calculated under the Claimant’s contract excluding overtime.

[29]I can see the following from the Respondent’s internal calculations for 2024:a. The Claimant’s rate of pay in 2024 was £18.80. The Claimant did not seek to challenge this; and

b. Between 1 January and 31 December 2024, the Claimant worked a total of 2382 hours, which the Claimant did not seek to dispute. The Respondent calculated this as accruing 288 hours holiday, which was 51 hours in excess of the 237 hour entitlement the Respondent calculated under the Claimant’s contract excluding overtime.

[30]There appears to have been a pay rise in March of each year that is retrospectively applied back to the start of the year.

[31]The Claimant commenced Early Conciliation via ACAS on 1 July 2025 and ACAS issued an Early Conciliation Certificate on 12 August 2025.

[32]The Claimant issued his claim oni 15 August 2025.

[33]On 15 September 2025, the Respondent paid the Claimant £2,551.92. This was an error and was intended to be half that amount, £1,275.95. This payment was made up of £317.16 for underpaid holiday pay in 2023 and £958.80 for underpaid holiday pay in 2024.

[34]In respect of 2025, the Respondent accepts that there is a further shortfall of holiday pay and is proposing to pay the Claimant a further £444.25 in respect of 192 hours of overtime at a rate of £19.17. This is due to be paid on 15 February 2026.

Conclusions

[35]The Claimant has based his calculations on the tax year. The Respondent has based its calculations on the holiday year (which runs with the calendar year). Both under contract and under the WTR, the Respondent’s approach seems to be the correct one. That is the basis on which I will proceed.

[36]The Claimant’s approach is conceptually correct for 2023 and 2024 in two respects. First, his entitlement is to 5.6 weeks’ holiday (pro rated for 2023) rather than to a specific number of hours’ holiday. The second is that a week’s pay should be based on actual pay received in the previous 52 weeks reference period (again pro rated for 2023). If we work on this basis, the question of averaging annual leave at 236 hours rather than 240 hours and payment of bank holidays essentially drop away. The total entitlement is 5.6 weeks’ (pro rated for 2023) paid at a week’s wages.

[37]This is a calculation that should be done for each instance when annual leave is actually taken. However, as I have before me no information on when annual leave was taken, I cannot do that. It is clear to me from the fact that the Respondent is making balancing payments that pay for annual leave taken did not include payment for overtime worked in respect of that period. The best I can do is to base a calculation on the assumption that the Claimant is taking all his annual leave at the end of the holiday year (including all overtime taken for that year). Whilst it is possible that overtime is not spread out evenly over the year and different rolling 52 week periods might produce different amounts for a week’s pay, there is no evidence before me that that is the case. Indeed, the Claimant himself in his schedule of loss seeks to calculate holiday pay owing in respect of overtime on a flat 12.07% basis for all three years. This does not seem to be a case like Brazel where that will obviously create an over or underpayment to the Claimant. In any event, it is the only basis on which I can proceed based on the information before me.

[38]The Claimant was employed from 13 September 2023, meaning that he was employed for 3½ months to the end of the 2023 holiday year. This means that the Claimant accrued 0.29 x 5.6 weeks’ annual leave – a total of 1.63 weeks’ annual leave.

[39]The Claimant worked 736 hours at £17.62 an hour. It does not appear from the Claimant’s schedule of loss that he worked on either Christmas or Boxing Day (being the only two bank holidays after he joined) – for which he would have been paid double. The Claimant’s total gross pay for 2023 was therefore – 736 x £17.62 – totalling £12,968.32. The Claimant worked these hours over 15.8 weeks. That produces a weekly wage of £821.

[40]Multiplying 1.63 weeks by £821 produces holiday pay due to the Claimant in respect of 2023 of £1,338.

[41]The Claimant appears from the Respondent’s unchallenged records to have been paid during the leave year a total of 71 hours at a rate of £17.62 totalling £1,251. Accordingly, an unlawful deduction of up to £87 appears to have been made by the Respondent.

[42]However, on 15 September 2025 the Respondent paid the Claimant £317.16 for underpaid holiday pay in 2023.

[43]It follows that all sums due to the Claimant for annual leave for 2023 have been paid.

[44]The Claimant was employed for all of the 2024 holiday year, meaning that he was entitled to the full 5.6 weeks’ annual leave.

[45]The Claimant worked 2382 hours at £18.80 an hour. It appears from the Claimant’s schedule of loss that he worked on 4 of the 8 bank holidays for which he would have been paid double (as he claims not to have been paid for 4). Assuming these were 12 hour days, the Claimant earned a further £902.40 for those 4 days. These sums have not been included in the Respondent’s calculations. The Claimant’s total gross pay for 2024 was therefore – 2382 x £18.80 + £902.40 – totalling £45,684. That produces a weekly wage over 52 weeks of £879.

[46]Multiplying 5.6 weeks by £879 produces holiday pay due to the Claimant in respect of 2024 of £4,922.40.

[47]The Claimant appears from the Respondent’s unchallenged records to have been paid during the holiday year a total of 237 hours at a rate of £18.80 totalling £4,455.60. Accordingly, an unlawful deduction of up to £466.80 appears to have been made by the Respondent.

[48]However, on 15 September 2025 the Respondent paid the Claimant £868.40 for underpaid holiday pay in 2024.

[49]It follows that all sums due to the Claimant for annual leave for 2024 have been paid.

[50]Even though the claim form was issued part way through the year, it seems proportionate to consider the entire year. To the extent that this required an amendment to the Claimant’s claim, I grant permission to amend. Equally, earlier deductions clearly form part of a series of deductions ending in time.

[51]As a holiday year starting after 1 April 2024, the new provisions of the Working Time Regulations allowing calculation of holiday pay on a 12.07% basis and allowing payment of rolled up holiday pay apply to this year. Thereafter, it seems that calculation based on hours (as anticipated under the Claimant’s contract of employment) is in accordance with the Working Time Regulations 1998 (as amended).

[52]However, the Respondent has admitted that it continues to need to make a balancing payment to the Claimant, suggesting that annual leave is still not being paid to reflect overtime taken in the period in question. There seems therefore to be an ongoing issue of unlawful deduction from wages.

[53]I accept the Respondent’s evidence that a further 1.92 days’ holiday equating to £444.25 is owed to the Claimant in respect of annual leave for 2025. This is due to be paid to the Claimant on 15 February 2026.

[54]It follows that there has been an unlawful deduction from the Claimant’s wages in that amount and I make an order for the Respondent to pay that sum to the Claimant. It will, in all likelihood, have already been paid by the time this judgment is received.

[55]As this exercise is largely mathematical and, in particular, given my calculations have produced lower sums for deductions from wages than either party, I extend the time to request reconsideration of this judgment to 28 days from the date of the judgment. Approved by