Mr K Klimek v Why Not Bar and Lounge Ltd — 2024

The Claimant, a bar supervisor, brought complaints of unfair dismissal, unauthorised deduction from wages and unpaid holiday pay against the Respondent. The unfair dismissal complaint was dismissed because the Claimant did not have the two years' qualifying service required to bring such a claim, and he had not responded to a strike-out warning. The Respondent accepted the unauthorised deduction from wages claim in respect of the Claimant's final month's wages, with an agreed outstanding balance of £686.36 as at the hearing date, subject to reduction for further part payments.

The principal dispute was the holiday pay claim. The Respondent's position was that days the Claimant had not clocked in were recorded as leave days under its system. The tribunal found, on the balance of probabilities, that the clocking-in records were not accurate and that the Respondent did not have a contractual right to deem shortfalls of hours worked as annual leave without the Claimant's agreement, nor had effective notice been given under the Working Time Regulations requiring leave to be taken.

Applying the Working Time Regulations 1998 and section 221(2) ERA 1996, and taking the Claimant's monthly salary of £2,000 gross (£24,000 a year, £461.54 a week) with an average 4.5-day working week, the tribunal calculated an entitlement of 2.13 weeks' holiday pay (9.6 days accrued over 4 months of the holiday year), producing a gross award of £983.08. The tribunal rejected the Respondent's attempt to offset claimed underworked hours, noting that a relevant agreement under the Working Time Regulations cannot provide for payment less than the usual amount payable when taking annual leave.