Claimant v B Singh and others — 2023

The tribunal recorded that the claimant's unfair dismissal and breach of contract claims had already been dismissed by EJ Livesey at a preliminary hearing on 19 to 21 July 2022, when he was found to be a worker but not an employee. This reserved judgment therefore dealt with the remaining claims for unauthorised deductions from wages, including non-payment of the national minimum wage, and for accrued but untaken holiday pay.

The claimant worked as a Giani at the Bristol Sikh Temple from 30 August 2017 to 25 November 2020. The tribunal preferred his evidence to that of the respondents' witnesses on the disputed working pattern and found that he was expected to 'man' the Temple during opening hours, assist visitors, and be available for prayer readings and ceremonies. It held that he was engaged in unmeasured work and, applying Uber v Aslam, that his on-call time during Temple opening hours counted as working time for national minimum wage purposes.

On that basis, the tribunal held that the respondents failed to pay the national minimum wage from the start of the employment until 24 March 2020 and again from 15 June 2020 until the end of the employment, but not during the period when the Temple was closed between 24 March and 14 June 2020. It found that the fixed fees paid for special ceremonies counted as additional pay for specific work, but did not meet the full NMW shortfall. The tribunal also noted that the gap in March to June 2020 was too short to break the series of deductions under Bear Scotland Ltd v Fulton.

The holiday pay claim also succeeded. The tribunal found that the claimant had never been given paid holiday, that his leave year ran from 30 August to 29 August, that he had accrued 1.3 weeks in the final leave year, and that no paid leave had been taken. It found that untaken leave carried over from previous years because the respondents had not given him a genuine opportunity to take paid annual leave, relying on King v Sash Window Workshop Ltd and Smith v Pimlico Plumbers. The tribunal indicated a separate remedy hearing would be needed to calculate the sums due.