Ms MI Bellon Ferreiro v MCD Manchester Ltd: 2402517/2021
| Judgment Date | 20 October 2021 |
| Citation | 2402517/2021 |
| Date | 20 October 2021 |
| Published date | 04 November 2021 |
| Court | Employment Tribunal |
| Subject Matter | Working Time Regulations |
Case Number: 2402517/2021
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EMPLOYMENT TRIBUNALS
Claimant:
Ms MI Bellon Ferreiro
Respondent:
MCD Manchester Limited
Heard at: Manchester (in private; by telephone) On: 9 August &
4 October 2021
Before: Employment Judge Shotter (sitting alone)
Representatives
For the claimant: In person
For the respondent: Ms G Nicolls, counsel
Interpreter: Ms F Sempere JUDGMENT
The Judgment of the Tribunal is:
1. The complaint for unlawful deduction of wages was not presented to the
Tribunal before the end of the period of three months, beginning with the date
on which it is alleged that the payment should have been made being 30 April
2020. There is no continuing act. It was reasonably practicable for a complaint
to be presented within the three-month period and the complaint was not
presented within such further period as the Tribunal considers reasonable. The
Tribunal does not have the jurisdiction to consider the claimant’s complaint for
the unlawful deduction of wages relating to a Covid19 payment that allegedly
should have been paid on the 30 April 2020, which is dismissed.
2. The complaint for accrued but unpaid holiday pay is not well-founded
and is dismissed.
Case Number: 2402517/2021
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REASONS
Introduction
1. This is a final hearing following an adjournment of the 9 August 2021 hearing.
2. By a claim form received on 20 March 2021 following ACAS Early conciliation
between the 24 and 25 February 2021 the claimant, who was employed as a
“crew member” from 17 September 2019 to 3 January 2021, claims unlawful
deduction of wages under S.13 of the Employment Rights Act 1996 as
amended (“the ERA”) and accrued unpaid holiday pay.
Holiday pay claim
3. The claimant originally claimed holiday pay outstanding from 2019 totaling
£278.18, and £891.43 accrued and unpaid in 2021. These figures have been
changed by the claimant who claims £281.05 for her 2019 holiday entitlement
and £552.98 for her 2020/2021 holiday entitlement. The claimant’s new
calculations are difficult to follow taking into account the wage slips in the
bundle and the agreed figures. It is noted in the contemporaneous documents
the claimant claimed £369.64 holiday pay for 2019, I am concerned that the
claimant’s figures cannot be relied upon, as the burden of proving the claims
rests on her.
4. These figures have since changed as the respondent made a number of
payments representing accrued untaken holiday since proceedings were issued
in addition to earlier payments made and the 5-day compulsory holiday taken
by the claimant together with 17-days taken from 8 to 31 December 2020,
which the claimant maintains were not holidays as she was required to work
weekends. In so maintaining the claimant appears to be ignoring the fact that
she was paid holiday pay for 17-days days in December 2020. To assist her
recollection, it has been agreed the respondent would provide a schedule
(loosely based on Scott Schedule) showing all the payments made and when
over the disputed periods consisting of furlough payments, holiday pay and
normal pay. The respondent has now provided this document.
Furlough pay claim
5. At the hearing on 9 August 2021 the claimant gave evidence on cross-
examination that she was read out a letter which she never signed and a copy
was not sent out to her. The letter is dated 26 October 2020 and it brought the
flexible furlough to an end. The claimant did not inform me that she had a copy
of the letter, and the hearing was adjourned on the basis that the respondent
would try and locate it. The claimant did not volunteer the fact that she had it,
and it transpired by the reconvened hearing the respondent could not find the
letter, whereupon the claimant produced her copy as she had no choice if she
wanted to rely on it as evidence that it was not signed by her and therefore not
accepted as bringing furlough to an end. In oral evidence the claimant
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