Case 3322070/2019 · Employment Tribunal
Mr A Kaley v Anglo Industrial Holdings Ltd — 2021
- Case reference
- 3322070/2019
- Decision date
- 11 February 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Anderson Appearances
- Venue
- Watford
Parties
2 namedClaimant
Mr A Kaley
Respondent
Key findings
Tribunal's reasoningMr A Kaley worked for Elder Sheet Metal from 2 October 2017 to 30 April 2019 as a welder. He said holiday pay should have included overtime and that he should have been paid his full wage for a week of sickness absence from 19 April 2019 to 25 April 2019. The respondent relied on its standard contract, which provided for statutory sick pay for absences of four or more days and made any full-rate sick pay discretionary, and said the claimant had been given key terms and conditions on starting employment.
On the holiday pay issue, the tribunal applied Dudley Metropolitan Borough Council v Willetts and others and asked whether the overtime was sufficiently regular to amount to normal remuneration. It found the claimant had received overtime payments in only 10 of the 20 months of employment, no overtime payments from January to April 2019, and then a payment in May for work done in April. That was not sufficiently regular or over a sufficient period, so the holiday pay claim was dismissed.
On sick pay and unpaid wages, the tribunal found that the claimant had been paid his full weekly wage for one week of sickness absence in August 2018, but that this happened by oversight and was not intended to set a precedent. It held that the later April 2019 sickness absence was therefore payable only at statutory sick pay rates, and the claim for unpaid wages for that week was dismissed. The tribunal also held that because the substantive claim failed, no award could be made under s.38 Employment Act 2002 for the alleged failure to provide a statement of terms and conditions.
The respondent's counterclaim for overpayment arising from the August 2018 sickness absence was also dismissed. The tribunal accepted the respondent's evidence that it had noticed the error in January 2019 and told the claimant that the amount would be deducted from January pay, but found that no deduction was made and the matter was not pursued again during the claimant's employment or in the final pay calculation, so the respondent had decided not to recover it.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Holiday pay | The tribunal found the overtime payments were not sufficiently regular or paid over a sufficient period to form part of the claimant's normal weekly remuneration for holiday pay purposes. | Dismissed | — | — |
| Unlawful deduction from wages | The tribunal found the August 2018 payment of full weekly wage during sickness absence was made in error and did not create any entitlement for the later sickness absence in April 2019. | Dismissed | — | — |
| Other | Claim for an award under s.38 Employment Act 2002 for failure to provide written terms and conditions; no award was made because the substantive claim failed. | Dismissed | — | — |
| Breach of contract | Employer's counterclaim for alleged overpayment relating to an August 2018 sickness absence was dismissed; the tribunal found the employer decided not to pursue the overpayment after noting the error. | Dismissed | — | — |
Legal tests applied
5 references- Dudley Metropolitan Borough Council v Willetts and others [2017] IRLR 870
- s.13(1) Employment Rights Act 1996
- s.23 Employment Rights Act 1996
- s.27 Employment Rights Act 1996
- s.38 Employment Act 2002
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
How we got this data
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