Mr N Sumner v Sentinel Group Security Limited — 2023

The claimant worked as a patrol and response officer from 19 October 2020 to 26 June 2022 on 42 contractual hours per week, with overtime above that not guaranteed. The tribunal found there had been no agreement to vary his basic hours, although from March 2021 there was a mutual expectation that overtime would be offered and worked until further notice. It accepted that he booked annual leave by text or verbally, sometimes on days when he knew he might otherwise be rostered for overtime.

On the regulation 14 WTR claim, the tribunal rejected the argument that annual leave booked on days that later turned out to be overtime shifts meant he had been denied an effective opportunity to take leave. It found that he chose to book leave because he wanted time off and knew the Respondent might otherwise allocate overtime. The tribunal also held that, even on his case, annual leave could lawfully be taken on a day when he would not otherwise have been obliged to work, relying on the approach in Russell v Transocean International Resources Ltd. It therefore held that he had taken his statutory leave and was not entitled to a payment in lieu on termination.

On holiday pay, the claimant said the pay received for 20 days of leave in 2021 and 2022 should have reflected his normal remuneration over the previous 52 weeks. He calculated a gross shortfall of £214.62, using daily holiday pay figures of £109.80 at £9.15 per hour and £117 at £9.75 per hour. The tribunal did not decide that calculation on the merits because it held the section 13 ERA claim was out of time: the last alleged deduction was 12 May 2022, the claim was lodged on 11 September 2022, and after ACAS early conciliation the final day for presentation was 10 September 2022. The claimant had taken legal advice and had raised the issue with Ms Eden in May and June 2022, so the tribunal saw no basis for extending time. The shortfall claim was therefore dismissed.