Mr G Ardito v The Agile Rabbit Limited — 2023

The claimant worked for The Agile Rabbit Limited as general manager from 25 October 2021. The tribunal found that the parties' written contract provided for salary, quarterly bonus and overtime at the claimant's normal rate, but made no mention of tronc or service charge. It accepted that the claimant became tronc master in January 2022 after Mr Polizzotto left, and that the respondent's restaurant operated a card-only service-charge system with tronc distributed through payroll. The tribunal also accepted the clocking-in records, which showed 1,935 hours worked between 25 October 2021 and 17 May 2022.

On the wage claims, the tribunal held that the May 2022 salary and tronc shown on the payslip, the June 2022 salary, and the January and April 2022 bonuses were all unlawfully withheld. It rejected the respondent's argument that it had a contractual right to deduct the sums because the claimant had paid tronc to himself; the tribunal found there was no documentation showing the tronc system was restricted in the way the respondent alleged, and that the January to April tronc payments had effectively been approved through payroll. The tribunal also found that the May payslip declared tronc as payable, so the May tronc element was properly payable once declared.

The June 2022 tronc claim failed. The tribunal held that this remained an undeclared discretionary payment and therefore did not constitute wages for the purposes of section 13 Employment Rights Act 1996. For overtime, the tribunal found that the claimant was effectively required to work the hours shown by the clocking system, that his contractual hours over the period were 1,450, and that the excess 485 hours should have been paid at his normal rate. It calculated the overtime loss at £6,547.50 gross.

The tribunal ordered the respondent to pay gross sums of £4,416.66 for the May 2022 salary and tronc claim, £2,961.42 for June 2022 salary, £2,000 for the unpaid bonus claim, and £6,547.50 for overtime. It also noted that the claimant may be liable to tax on some of the sums awarded.