Mr Mohamed Patel v Diamond Bus Ltd — 2022

Mr Mohamed Patel was a bus driver whose employment transferred to Diamond Bus (North West) Limited on 11 August 2019. The tribunal found that his holiday entitlement was 35 days, split between 20 days of regulation 13 WTR leave, 8 days of additional regulation 13A leave, and 7 days of contractual leave under the Unite agreement. Diamond Bus accepted that the first 20 days of leave in each holiday year were Working Time Directive leave and had to be paid at the higher holiday pay rate, including regular voluntary overtime, but disputed that the remaining leave was payable in the same way. The claimant withdrew his furlough-pay complaint once he accepted the difference was explained by the furlough cap.

The tribunal held that the Unite agreement did not require the additional leave or contractual leave to be paid by reference to normal remuneration including voluntary overtime. Relying on Bear Scotland and Flowers, it concluded that the normal-remuneration approach applied only to the first 20 days of leave in each holiday year. It therefore upheld the holiday-pay complaints only so far as they related to WTD leave, finding unlawful deductions in respect of the identified leave days in the 2019-2020, 2020-2021 and 2021-2022 holiday years.

On time limits, the tribunal held that the first claim was in time because the September 2019 deduction formed part of a series of deductions continuing through to the deduction relating to 26 July 2020, and it applied Ekwelem in treating the intervening deductions as part of the same series for limitation purposes. It accepted the claimant's calculations of the underpayments and, for the first claim, applied a 15% uplift for the respondent's unreasonable failure to comply with the ACAS Code in dealing with the grievance; for the second claim, it applied a 5% uplift for delays and defects in the grievance process. The final gross awards were £1,261.96 in case 2413360/2020 and £1,012.11 in case 2409239/2021, giving a total award of £2,274.07 before tax and national insurance deductions.