Mr Christopher Smith v HGV Drivers UK Limited — 2022

The Claimant worked for HGV Drivers UK Limited between 5 October 2021 and 23 December 2021 as an agency HGV tipper driver. His engagement had no fixed hours or fixed days. The agency agreement provided for statutory annual leave at 5.6 weeks, expressed as 12.07% when paid weekly on top of the hourly rate, and the tribunal treated the entitlement as accruing in proportion to hours worked during the leave year.

The tribunal found that the Claimant had worked 292.75 hours and that his hourly rate was £17.37. Applying the contractual/WTR formula, it calculated accrued holiday entitlement of 35.33 hours, worth £613.77. It found that he had taken no paid leave. The Respondent had purported to pay £171.23 in holiday pay on the final two payslips, but the tribunal held that this did not exhaust the entitlement, leaving £442.54 due in respect of accrued but untaken holiday pay.

The tribunal also dealt with the way the Respondent had paid the final two payslips. It accepted the Claimant's position that rolled-up holiday pay had not been agreed from the outset and noted that the Respondent had unilaterally reduced the hourly rate to £15.50 for the final two pay periods. After allowing a technical amendment to add an unlawful deductions from wages claim, the tribunal found that the correct sums due for those periods were higher than the sums actually paid, and it awarded £135.10 for unlawful deductions from wages.

In reaching its decision, the tribunal referred to the Working Time Regulations formula for holiday entitlement and to sections 221 to 224 of the Employment Rights Act 1996 for calculating a week's pay, adapting that approach to a worker with variable hours and days. The final award consisted of £442.54 for holiday pay and £135.10 for unlawful deductions from wages, making £577.64 in total. A separate notice on interest was included, but no interest figure was set out in the reasons.