Mr D Cunningham v Represented by: Ms C Finlay - Partner A Taste of Scotland — 2022

This was a preliminary hearing on the respondent’s application to strike out parts of Mr D Cunningham’s claim. The tribunal did not determine whether he was an agricultural worker for all purposes; for the strike-out application, his case was taken at its highest. The respondent did not seek strike out of the holiday pay element, so only the claims for overtime wages, a higher hourly rate, and rest periods were in issue.

The overtime claim, put at £13,281.84, was struck out because the claimant could not identify when overtime was worked or produce records showing the hours actually worked. He accepted he kept no diary, did not clock in or out, and said it would be impossible to give day-by-day detail. The tribunal held that he could not discharge the burden of showing that wages were properly payable for 48 hours per week, so that part of the claim had no reasonable prospect of success under section 13 of the Employment Rights Act 1996.

The claim for payment at a higher hourly rate, put at £2,369.76, was also struck out. The claimant argued that experience should attract a higher rate, but the tribunal held that regulation 7 of the Agricultural Workers (Scotland) Wages (No. 65) Order 2018 required the worker to hold a Scottish or NVQ qualification, an apprenticeship certificate, or a certificate of acquired experience. The claimant did not say that he held any such qualification or certificate, and the tribunal found there was no basis in the Order for experience alone to trigger the additional sum.

The rest-period claim, put at £6,357.12, was struck out because the claimant accepted he had never asked for a rest day. The tribunal held that regulation 11 of the Working Time Regulations 1998, read with regulation 30, required a refusal to permit the exercise of the right, and it relied on Miles v Linkage Community Trust Ltd for the meaning of that phrase. As the claimant had not attempted to exercise the right, the tribunal concluded that this part of the claim had no reasonable prospect of success. The holiday pay claim was not struck out and was said to proceed to a hearing.