In person For the v Ms L Pearce, Solicitor — 2019

The claimant was employed from 1 December 2017 under a written contract describing him as a Property Manager, although the tribunal recorded that in practice he was a driver and general handyman at Mr Savov's domestic address. His salary was £45,000 per annum, paid at £3,750 gross per calendar month. The contract provided for 45 hours per week, flexible additional hours if required, an opt-out from the Working Time Regulations 48-hour limit, and no additional payment for hours above normal hours. He was dismissed for gross misconduct on 25 June 2018 and brought claims for unpaid holiday pay, four days' unpaid work, and 195 hours of overtime.

On holiday pay, the tribunal accepted the claimant's evidence that he worked the four bank holidays after 1 January 2018 and that the respondent had no records showing any other days off. It found that by the date of dismissal he had accrued 13.6 days' holiday, of which he had been paid for 11 days on termination, leaving a shortfall of 1.6 days. Using a daily rate of £173.08, the tribunal awarded £276.93 gross.

On wages, the tribunal rejected the claimant's argument that being paid on the 5th of each month meant he was paid from the 5th of the previous month and so had been underpaid for the first four days of employment. It held that he was paid for each calendar month, calculated that he worked 17 days in June 2018 worth £2,942.36, and compared that with the final wage slip showing payment of £2,596.14. The resulting gross shortfall was £346.22, which was awarded.

The overtime claim failed. The tribunal found that the contract did not provide for overtime payment because the claimant was salaried and the agreement required flexible working. It also noted that the claimant did not comply with the case management order requiring him to provide his remedy calculations and supporting documents, and that he only produced a five-page schedule on the morning of the hearing. Having heard evidence from the claimant and Mr Savov, the tribunal accepted Mr Savov's evidence on this issue, doubted the claimant's account that he worked regular 7am to 7pm days, and found that the claimant had not proved a contractual right to overtime or that he had actually worked beyond his contractual hours. The total award was £623.15 gross.