Richard Huamani Capcha v Sharma’s Food Ltd — 2021

The respondent accepted that the claimant was an employee throughout, that he worked seven days a week, that his pay was at National Minimum Wage level throughout, and that he took no holiday during the employment save Christmas Day. The main dispute was the hours worked. The claimant said he worked 9.5 hours a day, while the respondent said 49 hours a week. The tribunal preferred the claimant's evidence on the opening time of the store, but also accepted that there was some truth in the respondent's case that the claimant sometimes left earlier, especially on Sundays. On that basis it found a working pattern of 8.5 hours a day, from 6:30am to 3:30pm with an unpaid 30 minute break.

Using that finding, the tribunal calculated a weekly NMW figure of £488.53. For the period 25 September 2019 to 23 March 2020, it treated £1,700 a month as the relevant pay, excluded extra payments said to be reimbursements, and found a shortfall of £2,201.72 after allowing for payments and a £1,000 bonus in December 2019 and a reduced March 2020 payment. For the furlough period from 23 March to the end of April, it assessed pay on the basis of 48 hours a week at 80% of NMW and awarded £891.58.

The holiday pay claim succeeded because the respondent accepted that the claimant had 16.5 days' untaken holiday, and the tribunal calculated holiday pay at £1,151.54 less £922.25 already paid, leaving £229.29. The breach of contract claim also succeeded: the tribunal did not accept the respondent's evidence that a contract had been provided and awarded two weeks' pay, being £977.06.

On weekly rest breaks, the tribunal found the respondent accepted that no weekly rest breaks had been given for the six months worked. It described the award as discretionary and said there was no case law guidance, but considered consistency with the Vento bands and personal injury claims important. It took into account that the claimant was willing to do the work, that the parties were friends and shared accommodation, that there was no adverse effect on health, and that the claimant could have asked for and insisted on breaks. It nevertheless found that working seven days a week for six months with only Christmas Day off was unacceptable and awarded £2,500. The total award was £6,799.65.