Mrs S Swinfield v Degree-Six Recruitment Limited — 2019

Mrs S Swinfield brought a holiday pay claim against Degree-Six Recruitment Limited. The respondent did not attend the hearing. The tribunal noted that the claimant was an agency worker on a zero-hours contract, and that any possible complaint about failure to provide written particulars was not within jurisdiction because she was a worker rather than an employee; a possible itemised pay statement complaint was not pursued.

The sole issue decided was whether the claimant was entitled to any additional holiday pay under the Working Time Regulations 1998. The claimant’s figures changed over time, from £1,281.44 to £1,481.45 and then to £1,361.02, and the evidential basis for the calculation also changed. The tribunal found the evidence about when holiday was taken to be vague and at times contradictory, and there was no evidence explaining how holiday pay previously paid by the respondent had been calculated.

The tribunal accepted that the claimant had received holiday pay on 18 May 2018, 19 October 2018, 15 March 2019, 5 April 2019 and 19 July 2019. On the claimant’s own evidence, the only payment that corresponded to a week’s leave was the July 2019 payment of £353.50. The tribunal found that her average weekly pay in the 12 weeks before that leave was £343.75, so she had been paid more than the average for that period.

Applying regulation 16 of the Working Time Regulations 1998 and section 224(2) of the Employment Rights Act 1996, the tribunal held that the claimant had not shown on the balance of probabilities that she had been underpaid. It concluded that there was insufficient evidence to find a breach of regulations 13, 13A or 16, that any finding of underpayment would be speculation, and that the claimant had not discharged the burden of proof. The claim was therefore dismissed.