Case 3400220/2017 · Employment Tribunal
Mr L Kedzierski & Others Re: Lead Claimants Mr P Jasinski and Mr A Koscielny v Turners (Soham) Limited — 2019
- Case reference
- 3400220/2017
- Decision date
- 3 July 2019
- Jurisdiction
- England & Wales
- Judge
- Employment Judge M Warren Representation
- Venue
- Bury St Edmunds
Parties
2 namedClaimant
Mr L Kedzierski & Others Re: Lead Claimants Mr P Jasinski and Mr A Koscielny
Respondent
Key findings
Tribunal's reasoningThe tribunal held that the PROD2 and PROD3 wage agreements did not clearly explain how pay was calculated, including the respondent's 30-minute deduction and productivity-unit formula. Construing the contracts objectively, it implied a term that the respondent's long-standing wage-working agreement and formula applied, so the 30-minute figure operated in the calculation of wages due rather than as an express deduction from wages. It therefore could not finally determine the unlawful deduction claims, and it listed the matter for a later hearing to deal with the remaining wage, national minimum wage and holiday-pay issues.
For the PROD2 lead claimant, Mr Koscielny, the tribunal held that the productivity bonus scheme, which awarded units by reference to kilometres travelled, breached EC Regulation 561/2006 because it encouraged faster driving and avoiding rest breaks. Applying Patel v Mirza, it decided the bonus payments should nevertheless be counted when assessing whether the national minimum wage had been paid, while night, overtime and weekend premiums were excluded and the fuel bonus counted. The judgment left the final NMW assessment to be carried out on that basis.
On holiday pay, the tribunal held that holiday pay should be calculated by reference to the previous 12 weeks' pay and should include overtime, productivity bonus and fuel bonus. It also held that the respondent's bank-holiday buy-out or day-in-lieu arrangements were unlawful, and that unpaid leave and carry-over had to be treated within the limits it identified. The tribunal said that both lead claimants were entitled to paid leave for their annual allowance, but the individual shortfalls and dates of leave required further analysis of the records.
The tribunal distinguished between the two lead claimants on breach of contract. Mr Jasinski, whose employment had ended before the proceedings were issued, could pursue a post-termination holiday-pay claim within the tribunal's six-year breach-of-contract jurisdiction. Mr Koscielny, who was still employed when the proceedings were issued, could not bring that contractual holiday-pay claim at that stage. No final monetary award was made in this judgment; quantification was left to a later hearing.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unlawful deduction from wages | The tribunal held that the respondent's pay formula used a 30-minute deduction in the calculation of wages due, but that this was not an express deduction from wages. It implied the long-standing wage-working agreement into the contracts and said it could not finally conclude that the unlawful deduction claims failed, leaving further quantification to a later hearing. | Other | — | — |
| Other | For Mr Koscielny's PROD2 claim, the tribunal held the productivity bonus scheme breached EC Regulation 561/2006, but decided the bonus payments should still be counted when assessing national minimum wage compliance under Patel v Mirza. The final NMW entitlement was left to be assessed on that basis. | Other | — | — |
| Holiday pay | The tribunal held holiday pay should be calculated by reference to the previous 12 weeks' pay and should include overtime, productivity bonus and fuel bonus. It also held that bank-holiday cash-in or day-in-lieu arrangements were unlawful, but the individual shortfalls were left for later hearing. | Other | — | — |
| Breach of contract | The tribunal held that Mr Jasinski, whose employment had ended before proceedings were issued, could pursue a post-termination breach of contract claim for holiday pay within the tribunal's six-year jurisdictional limit. Mr Koscielny could not bring that contractual holiday-pay claim at that stage because he was still employed when the proceedings were issued. | Other | — | — |
Legal tests applied
20 references- Investors Compensation Scheme Ltd v West Bromwich Building Society
- business efficacy
- officious bystander test
- Patel v Mirza
- s.23(4A) ERA 1996
- Bear Scotland and Others v Fulton and Others
- King v Sash Windows Workshop
- Hamilton House Medical Limited v Hillier
- British Airways PLC v Williams
- Stringer & Others v Revenue and Customs Commissioners
- regulation 10 WTR 1998
- regulation 35 WTR 1998
- Porter v Bandridge Ltd
- Marks and Spencer v Williams-Ryan
- Dedman v British Building and Engineering Appliances Ltd
- Northamptonshire County Council v Entwhistle
- Parekh v London Borough of Brent
- Chandhok v Turkey
- Millin v Capstick & Others
- Saha v Capita Plc
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.
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