Mr McHugh, counsel v Econ Engineering Limited — 2019

The claimants alleged that Econ Engineering Limited had calculated holiday pay incorrectly and had made unauthorised deductions from wages. The tribunal held that there was a sufficient similarity of subject matter between the alleged underpayments to amount to a series of deductions for the purposes of section 23(3)(a) ERA, and it treated the first four weeks of each holiday year as Regulation 13 leave. Remedy was reserved to a later hearing.

The tribunal accepted that the shift allowance paid to Mr Dixon, Mr Michalewicz and Mr Taylor had to be included when calculating holiday pay for Regulation 13 leave, Regulation 13A leave, and contractual leave. It also found that the bonus scheme was incorporated into the claimants' contracts of employment and that the bonus formed part of their normal remuneration. On that basis, bonus payments had to be taken into account for Regulation 13 leave and Regulation 13A leave, but not for contractual leave beyond the Working Time Regulations.

The tribunal further held that the voluntary overtime paid to Mr Horn, Mr Johnston, Mr Lockwood and Mr Wilsher had to be included when calculating holiday pay for Regulation 13 leave. However, it found that voluntary overtime did not have to be included for Regulation 13A leave because the claimants had normal working hours for the purposes of sections 221 to 223 ERA, and it was also excluded from contractual leave beyond the statutory minimum. The tribunal relied in particular on Bear Scotland, British Airways v Williams, Lock v British Gas Trading Ltd, Dudley MBC v Willetts, Investors Compensation Scheme v West Bromwich Building Society, and Flowers v East of England Ambulance Trust in reaching those conclusions.