Mr B MacKinnon v Josepth South-gate Smith — 2020

Mr B MacKinnon worked as a chef at the Farmers Arms. The tribunal found that his employment transferred to the respondent in September 2017 under TUPE, and that his contract later ended on 3 June 2019 when he took over the pub through a company he owned. The dispute before the tribunal concerned accrued holiday pay and a five per cent profit-share bonus.

On holiday pay, the tribunal preferred the claimant's evidence that the respondent had agreed that staff could carry holiday forward because of a planned refurbishment, and it found that the accrued holiday pay was due when the employment terminated. It rejected the claimant's case that payment was postponed until an exit statement was received. However, the claimant did not contact ACAS until 9 October 2019 and did not prove that it was not reasonably practicable to present the claim earlier, so the holiday pay complaint was dismissed on time-limit and jurisdiction grounds.

On the bonus, the tribunal accepted that the parties had agreed a five per cent profit-share bonus and that it was to be calculated after receipt of the exit statement. It also accepted the respondent's evidence, including tax returns and accounts, showing that the Farmers Arms made net losses, so no further bonus was due. The unlawful deduction from wages claim relating to the bonus was therefore dismissed. The tribunal added that it did not consider that either the accrued holiday pay or the bonus transferred to the claimant when he took over the pub.