Mr K Lewis v Mulleys Motorways Ltd — 2022

The claimant, a coach driver, resigned with notice and the dispute concerned holiday pay on termination after a period of furlough in 2020. The tribunal treated the ET1 as advancing both a Working Time Regulations claim and a breach of contract claim. It found that the leave year ran from 1 January to 31 December, that the claimant could carry over unused contractual holiday, and that he had taken a number of agreed days off in 2019, 2020 and early 2021.

On the Working Time Regulations claim, the tribunal accepted that the respondent had not instructed the claimant to take annual leave during furlough. It considered the regulation 14 calculation and concluded that, even on assumptions favourable to the claimant, the amount already paid on termination was more than the statutory minimum due. It therefore dismissed the WTR complaint as not well-founded.

On the contract claim, the tribunal found that the parties' contractual arrangement entitled the claimant to carry over unused holiday and to be paid in lieu of unused entitlement on termination. It held that the parties had not agreed to reduce 2020 holiday entitlement because of furlough, and that the bank holidays in April and May 2020 were treated as holiday under the existing agreement even though the claimant was only paid 80% at the time. The tribunal also accepted the claimant's entitlement to 6.15 days for 2021 and 12 days of 2020 entitlement carried forward to termination.

Using an hourly/wage-based calculation, the tribunal assessed the contractual entitlement as £69 for the four furlough bank-holiday top-ups and £1,634.23 for unused holiday in lieu, making £1,703.23 in total. Against the £953.80 already paid, it found a shortfall of £749.43 gross and ordered that sum as damages for breach of contract.