CASE REF: 2228/16IT
CLAIMANT: Meabh Harvey
RESPONDENT: Metro Hair Beauty Limited
DECISION
The decision of the tribunal is that the respondent is hereby ordered to pay to the claimant the sum of £315.00 in respect of outstanding holiday pay.
Constitution of Tribunal:
Employment Judge Turkington
Appearances:
The claimant appeared and represented herself at the hearing.
The respondent appeared and was represented by Mr Alan McClelland, a Director of the respondent company.
The Claims
The claimant brought a claim for holiday pay.
The Issues
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The issues to be determined by the tribunal were:-
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Whether the claimant had outstanding holidays which were accrued but not taken at the date of termination of her employment and, if so, the amount of pay in lieu of such holidays due to the claimant.
Sources of Evidence
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The tribunal read the witness statements submitted by the claimant and by Alan McClelland on behalf of the respondent. The claimant and Mr McClelland had the opportunity at the hearing to cross-examine each other. The claimant also submitted a written witness statement from Rachel Hayes who was also a former employee of the respondent. Ms Hayes was not present at the hearing and, since she was not available for cross-examination by Mr McClelland, the tribunal explained to the parties that very limited weight, if any, could be given to the content of the Ms Hayes’ written statement. The tribunal also considered a number of documents submitted by the parties.
Facts of the Case
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Having considered the claim form submitted by the claimant, and having heard the evidence of the claimant and the respondent and considered the documents submitted by the parties, the tribunal found the following relevant facts:-
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The claimant began working for the respondent in January 2016. There was some dispute between the parties as to her precise start date. The claimant’s evidence was that she started work on Wednesday 6 January 2016. She produced a personal diary entry for that day which read “Metro 10 – 8.30 1st Day”. Mr McClelland’s evidence was that the claimant did not start work until 16 January 2016. He relied on a spreadsheet prepared by his accountant which showed that the claimant’s first pay slip was dated 23 January 2016. Mr McClelland also argued that it was normal for staff to start work on a Saturday as this was regarded as the first day of the working week.
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On balance, since the respondent did not have direct documentary evidence to confirm the claimant’s start date as opposed to the first pay processed for the claimant, the tribunal accepts the claimant’s direct evidence regarding her start date.
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The tribunal therefore finds as a fact that the claimant’s start date was 6 January 2016.
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The claimant’s regular hours of work were initially Wednesday 10 am to 8 pm and Saturday 9 am to 5 pm. From around March 2016, it appears that the claimant’s hours on Wednesday were reduced to 10 am to 4 pm. The claimant’s rate of pay was £7.50 per hour (gross). Some weeks, the claimant received pay slips, but on other occasions she was paid in cash and did not receive any pay slip.
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During her employment, there were a number of occasions on which the claimant did not work her regular hours. Shortly after she began work for the respondent, the claimant was on holiday in India for more than 2 weeks. Whilst this was not discussed directly, the claimant understood and tacitly agreed that this would be treated as unpaid leave. The claimant did not receive any pay for this period.
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On other occasions, the claimant was off at a time when she would normally have been working. The claimant was adamant that she did not receive any pay in respect of such time off.
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The claimant’s evidence was that, from time to time, she worked extra hours on days other than Wednesdays and Saturdays in order to cover for absent colleagues. The claimant’s case that this was the explanation as to why, on occasion, her wages were not reduced even though she had taken some time off on her normal working days. Mr McClelland accepted in his evidence that, from time to time, staff would cover for colleagues, although he said that it was often difficult to get cover. Mr McClelland also stated that the claimant did not often agree to cover for colleagues. The respondent’s case was that it appeared too convenient an explanation that the claimant had worked extra shifts on those occasions when she had taken a day off.
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On balance, the tribunal found the claimant’s evidence in this area to be both cogent and consistent and the tribunal therefore accepts the claimant’s evidence that, on a number of occasions, she had worked additional shifts in order to cover for colleagues. The tribunal also accepts that this was the reason why her pay did not appear to have been reduced even though she had taken time off.
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Mr McClelland accepted at the hearing that he did not keep any written records regarding holiday pay for staff. His evidence was that he would look at the matter at the time to see if he felt the employee was entitled to paid holidays.
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It is clear from the respondent’s own pay records, as compiled in the spreadsheet prepared by the respondent’s accountant, that the claimant’s pay fluctuated regularly presumably in line with hours actually worked. This spreadsheet contains no indication that the claimant received holiday pay on any occasion when she took time off from her regular shifts.
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The tribunal was surprised by the respondent’s failure to keep any records relating to holiday pay. This lack of written records together with the fact that the claimant seems to have been paid only for the hours she actually worked led the tribunal to conclude that the claimant did not receive any paid holidays.
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By letter dated 30 July 2016, the claimant resigned from her employment with the respondent with immediate effect.
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The claimant received her final pay and her P45 some time after the end of her employment, but the final pay did not include any identified payment in respect of holiday pay.
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The claimant calculated her average working hours during her employment with the respondent as 14 hours per week. The respondent’s calculation was 13.5 hours per week. The tribunal believes that the respondent’s approach correctly takes account of 30 minutes allowed for a lunch break and the tribunal therefore finds as a fact that the claimant’s average weekly hours of work were 13.5 hours per week.
Statement of Law
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Under Regulation 13 of the Working Time Regulations (as amended), a worker is entitled to a total of 5.6 weeks paid leave (pro rata) in any leave year. By Regulation 14, where a worker’s employment is terminated during the course of his leave year and on the termination date, the proportion of paid leave which he has received is less that the proportion of the leave year which has expired, the employer must make a payment in lieu of leave accrued but not taken.
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By regulation 30, a complaint must be presented to a tribunal within a period of 3 months beginning on the date when payment of holiday pay should have been made.
Conclusions
Holiday pay
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Since the claimant had not received any paid holiday during the course of her employment, the claimant was entitled to 5.6 weeks paid holiday (pro rata) on termination of her employment on 30 July 2016. Over the course of her employment, the claimant worked an average of 13.5 hours over a period of 29 weeks.
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Therefore, the claimant’s entitlement to holiday pay is calculated as follows:-
5.6 weeks x 13.5 (average hours per week) x 29 weeks/52 = 42 hours
Holiday pay = 42 hours x £7.50 per hour (gross) = £315.00 (gross).
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The respondent is therefore ordered to pay the claimant the sum of £315.00 for holiday pay.
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge:
Date and place of hearing: 27 February 2017, Belfast.
Date decision recorded in register and issued to parties:
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