Case 2501988/2020 · Employment Tribunal
Miss K Seward v Harper JD Limited — 2021
- Case reference
- 2501988/2020
- Decision date
- 26 April 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Morris
Parties
2 namedClaimant
Miss K Seward
Respondent
Key findings
Tribunal's reasoningMiss K Seward worked for Harper JD Limited as bar staff at the Dun Cow public house in Gateshead from 28 July 2017 until 23 September 2020. She resigned on 16 September 2020 and was on holiday during her one-week notice period. The tribunal found that she had requested holiday for April and May 2020, had not withdrawn those requests, and was treated as being on holiday during those weeks, although the respondent paid only furlough pay rather than her normal contractual pay.
On the Working Time Regulations issue, the tribunal accepted the respondent's calculation that by the termination date the claimant had accrued 52.6 hours of leave, rounded to 53 hours. It found that she had taken 16 working days, or 80 hours, of holiday in April and May, and that she was actually at work during the August weeks she had requested as holiday. The tribunal referred to Regulation 14 of the Working Time Regulations 1998 and Hill v Chappell, and held that there is no general right for an employer to recover excess holiday pay absent a contractual term to that effect. The claimant's contract had no reciprocal clawback provision.
The Regulation 14 claim was dismissed because the claimant had taken more holiday than had accrued by the end of employment. The tribunal nevertheless upheld the breach of contract complaint in relation to the April and May holiday weeks, finding a shortfall of £34.45 per week because she should have been paid £172.26 but received £137.81. It awarded £206.70 for that breach.
The tribunal also upheld the unauthorised deductions claim under sections 13, 23 and 24 of the Employment Rights Act 1996. It found that the respondent was wrong to recoup an asserted holiday deficit by withholding pay for 18.5 hours actually worked in Week 25 and for the notice period. The tribunal awarded £151.70 for Week 25 and £164.00 for the notice period, totalling £315.70. The overall sum ordered to be paid was £522.40, with the judgment stating that tax and employee national insurance issues were for the claimant alone.
Claims and outcomes
3 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Breach of contract | The tribunal held that, during the claimant's holidays in April and May 2020, the respondent paid furlough pay rather than the claimant's normal contractual pay. It awarded the shortfall of £34.45 per week for the relevant weeks, totalling £206.70. The notice-pay complaint was treated as part of the unauthorised deductions claim rather than as a separate breach-of-contract award. | Upheld | — | £207 |
| Holiday pay | The tribunal accepted the respondent's calculation that the claimant had accrued 52.6 hours, rounded to 53 hours, by 23 September 2020, but found that she had taken 16 working days/80 hours of holiday in April and May. It also found that she was working, not on holiday, during the August weeks she had requested leave. Applying Regulation 14 of the Working Time Regulations 1998 and Hill v Chappell, the tribunal held there was no entitlement to a payment in respect of untaken leave because the claimant had taken more holiday than had accrued, and there was no contractual clawback term. | Dismissed | — | — |
| Unlawful deduction from wages | The tribunal found that the respondent unlawfully deducted wages by not paying the claimant for 18.5 hours worked in Week 25 (£151.70) and by not paying her for the notice period after averaging the previous 11 weeks (£164.00). It held that the deductions were not authorised by statute, by contract, or by written agreement, and awarded the total of £315.70 under sections 13, 23 and 24 of the Employment Rights Act 1996. | Upheld | — | £316 |
Remedy
Monetary award- Total award
- £522
- across all upheld claims
Legal tests applied
7 references- Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994
- section 3(2) of the Employment Tribunals Act 1996
- Regulation 14 of the Working Time Regulations 1998
- Hill v Chappell EAT 1250/01
- section 13 of the Employment Rights Act 1996
- section 23 of the Employment Rights Act 1996
- section 24(1)(a) of the Employment Rights Act 1996
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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