Mr J Mbuoben Ashu v Pro-Active Recruitment Services — 2021

Mr Mbuoben Ashu worked for Pro-Active Recruitment Services from 10 June 2019 to 24 October 2019 as a Gateline Operative at Maidenhead Station. His engagement terms said he would be paid at the assignment rate for each minute worked. He understood the hourly rate to be £10.55, but his payslips showed £9.41 per hour with £1.14 per hour paid into a holiday fund. Pro-Active accepted there had been confusion about the hourly rate and, on 28 August 2020, paid him £1,347.37 in respect of his pay complaint.

On the wages issue, the tribunal preferred the timesheets and payslips, which showed 574.97 hours worked, over the claimant's asserted total of 856.4 hours. It found there was insufficient evidence to explain the larger figure, and no evidence that he was entitled to an extra 15 minutes' pay after leaving at the end of a shift. Using the corrected hourly rate, the difference due was £655.46, and the tribunal found that sum had already been included in the August 2020 payment. It therefore held that the claimant had been paid the wages properly payable to him and dismissed the unlawful deduction from wages complaint.

On holiday pay, the tribunal found that Pro-Active's practice of paying 12.07% of hourly pay into a holiday fund was a rolled-up holiday pay scheme. It held that the terms of engagement and induction booklet explained the scheme clearly, that the weekly payslips showed the holiday fund allocations and balances, and that the arrangement was transparent and comprehensible for the purposes of Robinson-Steele v RD Retail Services Ltd. The tribunal accepted that the holiday fund payments could be set off against the claimant's holiday entitlement. It found that, if he had been paid at £10.55 per hour, the holiday fund would have accrued at £1.27 per hour rather than £1.14, producing an additional £74.74, and that £89.80 in respect of that difference had already been included in the 28 August 2020 payment. It also found that £13.11 for accrued but untaken holiday had been paid, which was equal to or more than the amount due at termination, so no additional holiday pay was established.