Mr Gitau Ngugi v Servoca Events and Security Ltd — 2020

Mr Gitau Ngugi worked for Servoca Events and Security Ltd as an events steward at football stadia on match days from 2016. He accepted in his witness statement that he could offer himself as available, but was not obliged to do so, and the Respondent was under no obligation to offer him any work. When he did make himself available and accepted an assignment, both parties were committed. On that basis the tribunal found there was no mutuality of obligation and no contract of employment, so the unfair dismissal claim had no prospect of success.

The tribunal held that Mr Ngugi was a limb b worker and was entitled to holiday pay, and that the Respondent accepted that position. It found that for three years he had received payslips showing a base rate uplifted by 12.07% in respect of holiday pay. Although he said he had not signed the agreement specifying this, the tribunal found he had it and knew that was what was being done.

The tribunal accepted that the uplift appeared to have been imposed without any increase in total pay in 2016, but held it was too late to say that this was an ineffective change to his terms and conditions. It also noted that it was not suggested the arrangement reduced pay below national minimum wage levels. Relying on the authorities it cited, including Robinson-Steele and Kocur, the tribunal held that the payment mechanism was transparent and comprehensible and that, because he worked only on match days, the 12.07% holiday pay did not need to correspond with booked holiday.

The tribunal therefore found that Mr Ngugi had been paid all his holiday pay in advance as recorded on each payslip, so the holiday pay claim also had no prospect of success. Both claims were dismissed. The judgment notes that Mr Ngugi had ticked the box for other claims on the claim form, but no other claims were made in the ET1 or at the hearing.