In person For the First v The Insolvency Service — 2024

The claimant brought complaints for arrears of wages and holiday pay after his employment as Operations Manager with the Second Respondent ended on 26 July 2023. He said that he was owed 47 days of unpaid sums, and at the hearing he confirmed the figures claimed. The First Respondent resisted liability on the basis that Fat Toni's (Stroud) Limited had entered a CVA on 19 September 2019 and later a CVL on 4 August 2023, so the relevant insolvency date for National Insurance Fund purposes was the CVA date.

The tribunal explained that, for claims under ss.166 and 182 of the Employment Rights Act 1996, the claimant had to show that the arrears of pay and holiday pay were unpaid at the 'appropriate date' under s.185. It applied Secretary of State for Business, Innovation and Skills v McDonagh and ors, holding that where a company first enters a CVA and is later wound up, the first insolvency date is the relevant date and there is not a second appropriate date when liquidation follows. The claimant did not dispute the legal analysis and accepted that the only judgment that could be made on that issue was against the Second Respondent.

The tribunal therefore dismissed the complaints against the First and Third Respondents. It then entered judgment against the Second Respondent for the sums claimed: £3,775 gross for arrears of wages, calculated as 302 hours at £12.50 per hour, and £3,322 gross for accrued but untaken holiday, calculated as 22 days at £151 per day. The bottom-line award was £7,097.