Mr R Graham v Off-World Industries Ltd: 4111382/2021
| Jurisdiction | England & Wales |
| Judgment Date | 01 March 2022 |
| Date | 01 March 2022 |
| Citation | 4111382/2021 |
| Court | Employment Tribunal |
| Published date | 23 March 2022 |
| Subject Matter | Breach of Contract |
ETZ4(WR)
EMPLOYMENT TRIBUNALS (SCOTLAND)
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Case No: 4111382/2021 (V)
Held via Cloud Video Platform (CVP) on 14 February 2022
Employment Judge Murphy (sitting alone)
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Mr R Graham Claimant
In Person
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Off-World Industries Ltd Respondent
represented by
Mr B Thornber,
Solicitor
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JUDGMENT OF THE EMPLOYMENT TRIBUNAL
1. The claimant’s claim for breach of contract in respect of notice pay
does not succeed and is dismissed.
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2. The respondent has made an unauthorized deduction from wages
contrary to section 13 of the Employment Rights Act 1996 and is
ordered to pay to the claimant the sum of ONE THOUSAND
FOUR HUNDRED AND EIGHTY EIGHT POUNDS STERLING
AND FIFTY-FOUR PENCE (£1,488.54) in respect of pay in lieu of
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accrued untaken holiday.
3. The sum awarded in item 2 is expressed gross of tax and national
insurance. It is for the respondent to make any deductions lawfully
required to account to HMRC for any tax and employees’ national
insurance due on the sum, if applicable.
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4111382/2021 Page 2
REASONS
Preliminary Discussions
1. The claimant brought claims of unfair dismissal, a statutory redundancy
payment breach of contract in respect of notice pay and unauthorized
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deductions from wages in relation to accrued untaken holiday he
alleged he was owed on the termination of his employment. The
complaint of unfair dismissal and the claim for a statutory redundancy
payment were both dismissed following withdrawal at a previous
preliminary hearing on case management. The claimant confirmed his
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only outstanding complaints relate to notice and holiday pay.
2. At the outset, a number of matters were discussed and clarified. The
parties agreed that the claimant’s employment with the respondent
began on 14 August 2020. They agreed that the claimant worked
initially for 5.5 weeks from 14 August until on or about 23 September
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2020 and that during this period, his average gross weekly pay was
£404.
3. They agreed that, thereafter, the claimant was off on a period of sick
leave during which he was paid Statutory Sick Pay until late October
2020. From late October 2020, they agreed the claimant, who was still
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signed unfit for work, was placed on furlough leave and was paid
furlough pay at the gross weekly rate of £315.85.
4. There was a dispute as to when the employment ended, and who ended
it. The claimant maintains the respondent dismissed him. The
respondent maintains the claimant resigned.
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5. With respect to his claim for breach of contract in respect of notice pay,
the claimant accepts that, if he is found to have resigned, he is not
entitled to notice pay. The parties agree that the claimant’s notice
entitlement, if he is found to have been dismissed, was one week.
4111382/2021 Page 3
6. The claimant confirmed he claims for holiday accrued throughout the
whole period of his employment. He alleges he took no holiday. He
accepts the respondent paid him £46.66 as a top up to his furlough pay
in or around January 2021 which the respondent attributes to 3 days’
holiday. The claimant denies he was given any notice of holidays to be
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taken in the relevant pay cycle or at all. The respondent denies that the
claimant has any entitlement to payment in lieu of any outstanding
accrued annual leave on termination.
Issues
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7. The Issues to be determined are:-
a. Did the respondent dismiss the claimant?
b. If the respondent dismissed the claimant, it is agreed that the
claimant’s notice entitlement was one week. How should his week’s
notice pay be calculated?
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c. If the respondent did not dismiss the claimant, has the claimant’s
employment ended, and, if so, when?
d. What was the claimant’s annual leave year?
e. How much of the leave year had passed when the claimant’s
employment ended?
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f. How much leave had accrued for the year by that date?
g. How much paid leave had the claimant taken in the year?
h. Were any days carried over from previous holiday years?
i. How many days remain unpaid?
j. What is the relevant rate of pay?
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Findings in Fact
8. The claimant gave evidence on his own behalf and the respondent led
evidence from Iain Meiklejohn. Reference was made by the witnesses
to an electronic joint bundle. I make the following findings in fact on the
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balance of probabilities:
8.1 The respondent is a limited company which operates three café
bars, two butchers and one restaurant.
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