Mr A Miller v James Cowie & Co Ltd — 2018

Mr A Miller was employed by James Cowie & Co Ltd as a blacksmith erector from 3 June 2013 until 20 June 2017. In June 2017, while attending induction for work on the Queensferry Crossing contract, he tested positive for cocaine, was removed from site, suspended without pay, and then summarily dismissed following a disciplinary hearing on 19 June 2017. His appeal was unsuccessful.

The tribunal accepted that the respondent later realised suspension without pay had been unlawful and attempted to pay the claimant the sums due. It found the correct suspension pay was £819 gross, less tax of £109.60, National Insurance of £47.01 and an employee pension contribution of £4.35. The respondent also identified that it had overpaid the claimant by 3 days' holiday from the previous holiday year, amounting to £270.25, and after clawing this back the net sum due was £387.79, which the claimant accepted had been paid electronically.

In relation to holiday pay, the tribunal found the claimant's contractual holiday year ran from 1 September to 31 August and that he had taken 18 days' holiday in the 2016/17 year. Pro-rating to his leaving date of 19 June 2017, he was entitled to 22.5 days, meaning 4.5 days accrued but untaken holiday. The respondent had paid holiday pay on 23 June 2017 calculated as 59 hours at £10.50 per hour, plus a holiday supplement, but it also deducted £265 for three training courses under a training agreement signed on 29 March 2016 that authorised deductions for sums owed under the agreement.

The tribunal held that, on the facts found, the claimant had been paid all sums to which he was entitled and his claims for arrears of pay and holiday pay did not succeed. It also noted an issue raised at the hearing about a £1.30 per week deduction for laundering work overalls, but because no such claim was contained in the ET1 it could not make any judgment on that matter, citing Chapman v Simon 1994 IRLR 124 CA. The case was dismissed.