Mr C Simon v Pieroth Ltd — 2021

Mr C Simon was employed by Pieroth Ltd as a sales representative from 21 March 2001 until 4 December 2020. He claimed that he had been underpaid holiday pay for 10 fixed holiday days each year from 2007, whereas he said he had been paid correctly for 20 flexible holiday days. The tribunal treated the case as a claim under s.23 Employment Rights Act 1996 for unlawful deductions from wages, and refused the claimant's application to amend the case into a breach of contract claim.

The tribunal found that the claimant was entitled to 30 days' holiday per year, of which 10 days were fixed days set by the company. It accepted that the respondent paid flexible holiday separately, but not as a separate line item for fixed-day holiday. The judge reviewed the respondent's pay structure, including a monthly base salary of £1,770.83 and a sales adjustment base of £212.50, and recorded that the claimant would receive less for fixed-day holiday than for flexible-day holiday on the respondent's method of calculation. The judge also noted that the claimant accepted that 2017 and 2018 should be excluded from his complaint.

The claim failed on limitation. The last fixed holiday day before the claimant left employment was in August 2020, and the associated payment was made on 19 September 2020. The claim was presented on 3 March 2021 after one day of early conciliation on 4 February 2021, so it was out of time under s.23 ERA 1996. The tribunal held that it was reasonably practicable for the claimant to bring the claim in time, rejected his explanation that he was worried about the effect on his employment, and found that he did not bring the claim within a further reasonable period. The unlawful deduction claim was therefore dismissed and no remedy was awarded.