Mr Garczynski v Affordable Home Improvements London Limited — 2022

The tribunal found that the correct respondent was Affordable Home Improvements London Limited, not Mr Rasul personally, because the claimant’s pay slips and P60 showed that he was paid by the company. It found that the claimant’s employment began on 1 April 2018 and ended on 24 August 2021, and that he had continuous service throughout that period because his employment transferred from Affordable Lofts & Extensions Limited to Affordable Home Improvements London Limited under TUPE. The claimant had been laid off by a letter dated 12 July 2021, and he resigned on 24 August 2021.

The statutory redundancy payment claim was dismissed. Although the claimant had been laid off, the tribunal found that his remuneration was not genuinely dependent on work being provided, because his pay slips in the final eight months showed a fixed hourly rate and fixed monthly hours. On that basis the contract did not satisfy the lay-off definition relied on for the redundancy claim, so the claimant did not meet the statutory conditions for a redundancy payment by reason of lay-off.

The holiday pay claim succeeded. Using average weekly hours of 20.79 and the claimant’s hourly rates of £8.72 and then £9, the tribunal calculated pro rata holiday entitlement for each leave year. It applied Smith v Pimlico Plumbers Ltd to allow carry-forward of the four weeks of EU-derived leave, but not the additional 1.6 weeks under regulation 13A. The resulting award was £724.98 for 1 April 2018 to 31 March 2019, £724.98 for 1 April 2019 to 31 March 2020, £752.68 for 1 April 2020 to 31 March 2021, and £419.40 for 1 April 2021 to 24 August 2021, totalling £2,622.04.

The claim for pay during the final six weeks of employment also succeeded as an unauthorised deduction from wages. The tribunal accepted that, although the work arrangement was flexible, the respondent was not entitled under the parties’ verbal contract simply to stop paying the claimant when no work was provided. It awarded £1,114.02, based on six weeks at the average weekly pay of £185.67. Because the claimant succeeded on the unlawful deduction claim and had not been given a written statement of employment particulars, the tribunal also made an additional award of two weeks’ pay under section 38 of the Employment Act 2002, amounting to £371.34. No costs order was made.