Saktivel v Kamasutra Restaurant — 2021

The claimant worked as a waitress for the respondent from 20 January 2019 to 15 August 2019. After returning from a vacation in India on 24 September 2019, she said she could not obtain a response about shifts, payment, or a P45. She presented the tribunal claim on 7 September 2020 after ACAS early conciliation on 22 August 2020, and the respondent did not respond.

The tribunal held that the complaint was presented outside the three-month period beginning with 15 August 2019, but it accepted that it had not been reasonably practicable for the claimant to present the claim earlier. It accepted her evidence that she did not know about Employment Tribunals or the ability to make such a claim until a colleague told her in August 2020, that she had come from a country without such a procedure, and that she acted promptly once she learned of it. The tribunal referred to section 23(2) and (4) of the Employment Rights Act 1996 and Lowri Beck Services Limited v Brophy.

On the merits, the tribunal accepted the claimant's evidence that she had not taken any holiday in the year before 15 August 2019 and had not been paid holiday pay for leave due on termination. It accepted her calculation of 3.01 weeks' holiday pay at an average weekly pay of £98.39, giving £297.78, and also accepted that £94.00 was due in gratuities earned to the end of employment. The respondent was ordered to pay those sums.