Mr Mario Areal v United Guarding Services Limited — 2020

Mr Mario Areal was employed as a security officer from 7 July 2019 until 9 April 2020. His claim, presented on 2 July 2020, covered unauthorised deductions from wages and accrued holiday entitlement not taken at termination. Employment Judge Alliott sat alone at Watford by CVP and heard the case on 5 May 2021.

On holiday pay, the tribunal recorded that the respondent accepted it had made an error in relation to the claimant's 2020 holiday entitlement and the claimant confirmed he had been paid, so that element went no further. The tribunal then considered the 2019 holiday entitlement. It accepted the contract terms requiring holiday to be taken in the year accrued, with only limited carry-over in exceptional circumstances, and found that the claimant had not shown that Mr Morganti allowed him to carry over 2019 leave. The tribunal therefore held that the 2019 entitlement was lost and the holiday pay claim failed.

On wages, the tribunal upheld the claim for one hour on 27 October 2019 when the hour changed back and the claimant was not paid. The respondent accepted that he had not been paid for that hour, and judgment was entered for £9.08 gross. The rest of the wage claim was based on an alleged shortfall against a 36-hour weekly contract.

The tribunal rejected that wider wage claim. It found that the claimant was very selective about where and with whom he would work, referring to refusals of work at Uxbridge and Park Heights and an email on 19 March 2020 saying he would only really work in two locations. Applying the proposition in Miles v Wakefield MDC that remuneration depends on doing, or being willing to do, the work employed to do, the tribunal found the respondent was offering at least 36 hours per week and that the claimant was declining some of that work. The balance of the claim therefore failed.