In person For the v Mrs L McGlaughlin — 2020

Mr Law, an HGV driver employed by TEF Transport Ltd from 5 June 2017, brought a holiday pay complaint under s 23 Employment Rights Act 1996. The tribunal initially gave an oral judgment on 17 June 2020 that there had been a continuing series of deductions and awarded £1,050.15 gross, but on reconsideration it found that bank holiday pay paid on 6 September 2019 had been correctly paid and that there was a gap of more than three months between deductions. The earlier oral judgment was set aside.

The tribunal treated the eight bank holidays as Mr Law’s UK holidays and the other 20 days as European holidays. It found that his basic hours were 50 per week, that he was contractually entitled to £50 for each bank holiday, and that the contract’s night out allowance of £20 was genuinely intended to cover out-of-pocket expenses when he was away overnight, so it should not be included in normal remuneration for European holiday pay. Applying the approach in British Gas Trading Ltd v Lock and British Airways plc v Williams, the tribunal concluded that the night out allowance was an expenses payment rather than part of holiday pay.

On that basis, the tribunal found Mr Law had been underpaid for each holiday, including an underpayment of £94.80 on 13 September 2019 and £41.80 on each bank holiday except the last one. It held there was a series of deductions, but the gap between the deduction on 13 September 2019 and the deduction on 7 June 2019 broke that series. The claim relating to deductions up to and including 7 June 2019 was out of time; the tribunal applied the time-limit principles in s 23 Employment Rights Act 1996, Bear Scotland v Fulton, and Palmer and Saunders v Southend-on-Sea Borough Council, and found it was reasonably practicable for Mr Law to have brought the claim in time.

The tribunal therefore upheld only the 13 September 2019 deduction and ordered TEF Transport Ltd to pay £94.80 gross, with Mr Law responsible for any tax and National Insurance due. It refused his application for a preparation time order, finding that TEF had not behaved unreasonably in defending the claim given the calculation issues and the limitation dispute.