Mr E McGrath v Represented by Mr B Mitchell - Lay Representative The Scottish Ministers — 2024

The claimant presented a claim on 8 March 2024 for unpaid holiday pay arising from annual leave taken between 21 and 25 August 2023. At the hearing, the respondent said the claimant had been paid his August 2023 salary of £3,088.56 on 31 August 2023 and that there had been no deduction from wages. The claimant's position was that annual leave had been recorded as 37 hours rather than rostered hours, leaving a deficit of 5.5 hours that might have to be worked later or deducted from final pay if not made up.

The tribunal treated the pleaded case as an unlawful deduction of wages claim under section 13 of the Employment Rights Act 1996. It found that both parties accepted there had been no deduction from the claimant's pay in August 2023, so there were no disputed facts capable of supporting the claim. On that basis, and applying Rule 37(1)(a) and the cited strike-out authorities, the tribunal held that the claim had no reasonable prospect of success and granted the respondent's strike-out application.

The claimant also sought to amend the claim to allege that the annual leave recording policy breached the Working Time Directive and that he was not permitted to take leave, together with a breach of contract claim. The tribunal refused the amendment after applying the Selkent factors. It noted that no specific Working Time Directive provision had been identified, that the only possible annual leave complaint would be under regulation 30(1)(a) of the Working Time Regulations 1998, and that no refusal to permit leave had been identified. It also held that there was no jurisdiction to hear a breach of contract claim while the claimant remained employed.