Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REFS: 849/07;

850/07

CLAIMANTS: Carly Simmone Kerr

Maura Rachael Kerr

RESPONDENT: Mr Melvyn Archibald

T/A Mels Cuisine

DECISION

The unanimous decision of the tribunal is that the claimants' claim be upheld and that the respondent do pay to the first-named claimant the sum of £450 in respect of holiday pay and to the second-named claimant the sum of £280 in respect of holiday pay.

Constitution of Tribunal:

Chairman: Mr Davey

Members: Mr Nicholl

Mr Irwin

Appearances:

The claimants appeared in person.

The respondent appeared in person.

Reasons

1. The claimants' claimed holiday pay arising out of their employment with the respondent. There was no dispute that they were in the respondent's employment and that they would have qualified for holiday pay. The issues for the tribunal were factual and involved determining whether the claimants had been paid for all holidays which had accrued to them.
2. There was no dispute about the nature of the claimants' employment with the respondent. They were both employed as Waitresses. They had both been employed for some considerable time. Their claim related only to the final year of their employment. They originally started work on 3 May 2004. At the time their contracts of employment terminated, on 21 February 2007, their rates of pay were £4.50 per hour for the first-named claimant and £3.50 per hour for the second-named claimant. These rates were not disputed by the respondent and were specifically agreed to in his formal forms of response. The respondent also agreed, in his response, that the description of their hours, at 25 to 30 hours per week was correct. The claimants' evidence to the tribunal, which the tribunal accepted, was that they worked a minimum of 25 hours per week with more hours if available. There were no terms and conditions set out as between the parties.
3. The claimants accepted that they did get holidays but were both adamant that they did not get paid for any holidays taken. They described taking holidays in the summer, usually on family holidays, but having been to Ibiza together for two weeks in August 2007. It was suggested to them in cross-examination that they had taken other periods of holiday and they accepted that they might have been off for other periods but remained adamant that they were not paid for any of these periods.

The respondent's evidence was that when any member of staff wished to go on holiday or to take time off the request could either be written in a diary which was kept for such purposes or they could make a verbal request. A form would then be completed by either the respondent himself or his Manageress and these sheets would be retained. The respondent produced sheets relating to both the claimants. These sheets suggested that they had taken periods off, none of any greater length than one week and none at the same time. The respondent also produced sheets relating to each of the claimants purporting to show calculations of their pay, tax and national insurance week-by-week. To these papers there had then been added a column in ink showing the nett pay, with the weeks corresponding to the holiday sheets asterisked and showing the amount of wages attributable to those weeks. The respondent's evidence was that these figures were prepared by his accountants and that when he received the figures he then wrote cheques which would be handed to the staff, usually on Thursday. If any staff were on holiday or otherwise unavailable the cheque and the relevant pay-slip would be retained and made available to the member of staff concerned when they next attended. His evidence was that payments, as set out in these figures, had been made to both claimants throughout the year and that no week had been missed.

4. There was a clear clash of evidence. The tribunal found the nature of some of the respondent's evidence unsatisfactory. When first asked about the records relating to holidays and, in particular, the diary in which staff could write their requests, he indicated that he had not brought it with him as he did not know it would be required. Later in his evidence he said that the diary was thrown out each January and a new one started and that no diary for the relevant period was available. The tribunal, in any event, found this system unsatisfactory in that the sheets retained were not signed or marked by members of staff at all. The respondent also indicated that the holiday sheets which were retained would be completed by either himself or his Manageress. In relation to one sheet for the first-named claimant, which was the only sheet which bore any indication of his involvement at all, he accepted that the form itself had been completed by his Manageress but that he had signed it. In all other cases the forms had been completed and signed by the Manageress. He was unable to offer any satisfactory explanation for this anomaly. If the Manageress had the authority to authorise the holiday, why did she not complete this form like all the others. The initial explanation from the respondent was that there was no reason why one of them was signed by him and the rest by her. He then suggested that it might have been because it was Christmas week; but the tribunal found this unconvincing.

Although the respondent had produced copies of figures prepared by his Accountant, the tribunal did not consider these in themselves to be evidence of anything beyond the fact that calculations had been made. The only direct evidence that payment had been made came from the respondent himself. No copies of any corroborating evidence such as copies of pay-slips, of pay cheques or bank statements were produced.

The times of absence suggested by the holiday sheets produced by the respondent were clearly different in one major respect to the evidence of the claimants who had said that they usually went on family holidays, being sisters; but that they had, in 2006, been to Ibiza together. The tribunal found the claimants to be convincing witnesses and accepted this inherently likely account of their holiday behaviour. On that basis the tribunal concluded that the holiday sheets were not satisfactory and on that account and for the reasons stated above, did not accept the respondent's evidence in respect of either the holidays or the payments. Accordingly, the tribunal found that the claimants were not paid for the holidays which they took or were entitled to.

5. As there were no agreed terms and conditions relating to holidays between the parties the position is governed by the Working Time Regulations. Under those Regulations the holiday year begins on the day that employment begins and on each anniversary thereof. Accordingly, the claimants' holiday year began on 3 May. Under the Regulations employees were at the relevant time entitled to four weeks holiday or 20 days to be calculated pro rata if, at the time of the termination of employment a full holiday year had not been completed. On that basis the claimants are entitled to ¹⁶/_20th of their holiday entitlement. The claimants, according to their own evidence, worked a 25 hour week. They would get more from time to time; but their basic entitlement was 25 hours.
6. Applying these figures to the first-named claimant, she would have been entitled, on a full year basis, to four weeks holiday pay at 25 hours at £4.50 per hour. This amounts to £112.50 per week or £450. The claimant is entitled to ¹⁶/_20th of that, ie £360, subject to payment of tax and national insurance. Given the overall level of the first named claimant's earnings in the relevant tax year and the level of payment involved, there would be no deduction for tax or national insurance in the tribunals estimation. Therefore the sum payable to the first named claimant is £450.

In the case of the second-named claimant, she would have been entitled to a similar period of four weeks of 25 hours at £3.50 per hour, ie a total of £350. The second-named claimant is entitled to ¹⁶/_20th of this sum or £280. Given the overall level of the second-named claimant's earnings in the relevant tax year and the level of payment involved there would be no deduction for tax or national insurance in the tribunal's estimation. Accordingly, the sum payable to the second-named claimant is £280.

8. No question of recoupment arises.
9. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 22 November 2007, Strabane

Date decision recorded in register and issued to parties: