in person For the v Mr. R Prais, Solicitor — 2021

The claimant worked for the respondent from 1 September 2016 until 8 August 2019, when he resigned with immediate effect. He brought a claim for accrued holiday pay under regulation 16 of the Working Time Regulations 1998, and the respondent unsuccessfully applied to strike the claim out under rule 37 before evidence was heard. The tribunal heard from the claimant and Mr Patel, the owner of the business, and considered witness statements, pay slips, timesheets and other documents.

The tribunal found that the claimant managed the car wash business and, although the written contract referred to a zero-hours arrangement, the practical arrangement was different. It accepted Mr Patel's evidence that the claimant was paid in cash, sometimes by weekly advances on account, and that the monthly cash payments were balanced against the net sums shown on the pay advice slips. The tribunal found the pay slips were an accurate reflection of the pay arrangements and that the claimant was paid a normal monthly sum based on 173.33 hours, equivalent to 40 hours per week at the national minimum wage.

On the holiday-pay issue, the tribunal found that the claimant was paid the same monthly amount whether he was at work or away on holiday. It noted that the pay advice slips were consistent throughout employment and that the timesheets, including those produced after an HMRC audit in January 2018, were substantively consistent between the parties' versions. The tribunal also found that the claimant had not produced his own records showing that he was paid less than the amounts shown on the pay advice slips, and it rejected his account that the payslips were a sham.

The tribunal concluded that the claimant had no entitlement to unpaid holiday pay for the holiday periods he identified. It recorded that the respondent could be criticised for not issuing an updated written contract to reflect the actual arrangement, but that did not change the finding that the claimant received his normal pay while on holiday. The holiday pay complaint was therefore dismissed.