Mr P Aldous & Others v HTC Plant Limited & HTC Wolffkran Limited — 2017

The case concerned a large group of crane drivers and electricians employed by HTC Plant Limited and now employed by HTC Wolffkran Limited. The tribunal dealt with six test claimants and a holiday pay scheme that the respondents accepted was unlawful because the holiday pay calculation did not reflect normal pay. The issue before the tribunal was not liability in general, but how to apply limitation and set-off to claims for holiday pay within the 2014 holiday year.

On limitation, the tribunal rejected the submission that an unlawful deduction occurred week by week when sums were notionally credited to a holiday fund. It held that, for annual leave, the unlawful deduction arose on the date the employee was not paid in respect of the leave taken, and it applied the approach in Bear Scotland Limited v Fulton. For public holidays, the tribunal distinguished between leave within Regulation 13 and additional leave under Regulation 13A, holding that only the first 20 days of leave could engage the Lock-compliant holiday pay analysis.

On set-off, the tribunal held that the respondents were entitled to credit for holiday pay actually paid out of the holiday fund, provided the scheme met the transparency and comprehensibility requirements discussed in Robinson-Steele. It treated the arrangement as a Category 4 scheme under Marshalls Clay Products Limited v Caulfield and concluded that the handbook and payslips made the allocation sufficiently transparent and comprehensible. The tribunal therefore set out the method the parties should use to calculate each claimant's net loss, including deductions for sums already paid out and for out-of-time periods.

The judgment did not make a final monetary award. Instead, it stayed the proceedings generally, subject to any reconsideration applications, so that the parties could apply the stated principles to the six test claimants and then to the wider cohort of claimants. The tribunal said those principles should resolve the individual claims by agreement if possible.