Mr B Rodd v GMB Leisure Ltd and 1 other — 2019

Mr Rodd worked as a receptionist at the Bucks Indoor Tennis Centre from 1995. The First Respondent took over the contract in April 2010 and the Second Respondent on 1 October 2017. The tribunal held it had jurisdiction to hear the claim against the Second Respondent because the liabilities under the employment contract transferred on the TUPE transfer, and it was proper that the Second Respondent had been added to the proceedings.

On holiday pay, the tribunal found that the claimant had not taken all of the holiday to which he was entitled over a number of years, but that he had no contractual right to carry untaken holiday forward. It referred to the two-year limit in section 23(4)(A) ERA 1996 and to regulation 13(9)(a) of the Working Time Regulations 1998. For holiday accrued in leave years ending on or before 31 March 2017, the claim was dismissed because the entitlement had been lost at the end of the relevant leave year.

The position was different for the leave year from 1 April 2017 to 30 September 2017. The tribunal accepted Miss Ford's calculations and Mr Britton's written acknowledgement of 30 September 2017 that holiday pay was owing. It found that the claimant had been underpaid for 25.5 hours of holiday taken in that period at a rate of £7.50 per hour, and awarded £191.25. Liability for that sum transferred to the Second Respondent under TUPE, and the Second Respondent was ordered to pay it.

The tribunal also rejected the claim that the claimant was contractually entitled to an enhanced evening rate from April 2016 onwards. It accepted that he had previously been paid more for evening work than for day work, but found that from April 2016 the contractual rate was the same for both shifts. That part of the unlawful deduction from wages claim was therefore dismissed.