Mr D Nowaczyk v Arra Distribution Ltd — 2022

At a remote hearing before Employment Judge McCarthy sitting alone, the tribunal granted the claimant's application to amend his claim to add further complaints about 7 and 8 October 2021, applying Selkent Bus Company Limited v Moore and Abercrombie & Ors v Aga Rangemaster Limited. The claimant later withdrew his holiday pay complaint, which was dismissed on withdrawal.

The tribunal rejected the claimant's complaints about unpaid wages on 7 and 8 October 2021 and 5 November 2021. It accepted the respondent's Arra de-brief records, tachograph evidence and payroll evidence, and found that the claimant did not work on 7 and 8 October 2021, was on annual leave and had been paid holiday pay for those days. It also found that on 5 November 2021 the claimant refused to work, was not ready and willing to work, and was therefore not entitled to pay for that shift.

The tribunal also rejected the complaints about deductions on 1 October 2021 and 8 October 2021, finding that the sums deducted from net pay were recovery of earlier net advance payments already made to the claimant in relation to salary arrears, so there was no shortfall in the wages properly payable. It upheld the complaint about 22 October 2021 in the sense that it found an unauthorised deduction of £145 net had been made, but no order was made because that amount had already been repaid on 29 October 2021 under section 25(3) ERA 1996.

The notice pay breach of contract claim failed because the tribunal found the claimant would have earned £680 gross during his one week notice period on the 5 on, 3 off pattern, whereas he had received £880 gross as a payment in lieu of notice. The expenses complaint was dismissed because the tribunal held the claimed sums were not wages and, in any event, arose after the employment had ended so the tribunal had no jurisdiction. No monetary award was made in the final order.