Mr M Binns v Umbrella-Company Limited and 1 other — 2023

The tribunal found that Mr Binns was engaged by Umbrella Company Limited through Morgan Hunt UK Limited and was assigned first to Wakefield College and later to a further college assignment. It accepted that the claimant was told the pay rate was £25 per hour for the Wakefield assignment and £27.50 per hour for the later assignment, but was not clearly told that those figures were merely assignment rates and that his gross pay would be lower after deductions for the umbrella company's profit and employment costs. The written contract referred to salary, commission and holiday accrual, but did not set out a clear method for calculating gross pay in a way that matched the actual payslips and reconciliation statements.

On the unauthorised deduction claim, the tribunal applied an Autoclenz approach to the written terms and held that the reality of the bargain was that the claimant was to be paid £25 per hour at Wakefield and £27.50 per hour at the later assignment. Because the first respondent's deductions for profit and employment costs were not authorised by the contract or any prior written agreement, the tribunal held that the deductions were unauthorised within section 13 of the Employment Rights Act 1996. It also found that the first respondent's holiday-pay mechanism, which paid 12.07% of the reduced figure rather than on top of the hourly rate, meant the claimant was not paid holiday in addition to pay for work done.

The tribunal therefore upheld the regulation 30 Working Time Regulations complaint and the contractual holiday-pay complaint. It held that clause 4 required holiday pay at 12.07% of the claimant's hourly rate and that the claimant had instead been paid holiday pay calculated from a lower figure after deductions for employment costs. It rejected the separate clause 2.1 contractual complaint, holding that the wording gave the first respondent an opportunity to investigate Agency Workers Regulations issues but did not impose a duty to do so.

On the Agency Workers Regulations claim, the tribunal accepted the claimant's evidence about his duties and the comparator material from Wakefield College. It found that he was doing substantially the same work as a directly recruited lecturer and, after 12 weeks with each hirer, was entitled to the higher pro rata annual leave associated with that comparator: 28.38 days per annum at Wakefield and 32.35 days per annum at the later assignment. The tribunal held that the failure to provide that entitlement breached regulation 5. Remedy was not finally determined in this judgment; the tribunal directed that remedy would be dealt with at a later hearing and noted a possible section 38 Employment Act 2002 award for failure to provide compliant written particulars.