Anthony Nicholls v Blas ar Fwyd Cyf — 2023

Anthony Nicholls worked for Blas ar Fwyd Cyf as a delivery driver from 28 June 2021 until his employment ended on 19 September 2022. His contract stated that the holiday year ran from 1 April to 31 March, that entitlement was 28 days pro rata, and that on termination accrued but untaken leave would be paid out. The tribunal accepted that his work pattern was irregular and found that his average weekly hours in the 52 weeks before termination were 35.37, with average weekly gross pay of £371.39 at an hourly rate of £10.50.

For the Working Time Regulations claim, the tribunal applied the contractual termination formula alongside the principle identified in Connor v Chief Constable of South Yorkshire Police 2023 EAT 42, namely that a payment in lieu under a relevant agreement cannot leave the worker worse off than payment for annual leave taken during employment. It found that the claimant's total entitlement at termination was 93.32 hours. Against that, he had already taken 78.96 hours' annual leave during the holiday year and had also been paid 23.58 hours in lieu on termination, worth £247.59. The tribunal therefore found that he had received an overpayment of 9.22 hours and that no holiday pay was owed.

The breach of contract claim concerned a restrictive covenant agreement signed at the start of employment. The tribunal accepted that the agreement was a contract connected with employment for the purposes of section 3(2) of the Employment Tribunals Act 1996 and Article 3 of the Extension of Jurisdiction Order 1994, but it found no breach by the respondent. The claimant's evidence was that two prospective employers may have declined to employ him because of the covenants, but the respondent played no part in those decisions and was unaware of them. The tribunal also said that whether the covenants were enforceable was irrelevant to whether the respondent itself had breached the contract.