(sitting alone) Mr P Johnston v Muehlhan Industrial Services Ltd — 2020

Mr Johnston had been employed by Muehlhan Industrial Services Ltd since 2007 as a Scaffold Supervisor under a contract providing for 39 hours per week. The tribunal found that he had normal working hours for the purposes of section 234(1) ERA 1996, but that his remuneration during those normal hours did not vary with the amount of work done. Applying regulation 4(2) of the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020, and disregarding furlough-related reduction, the tribunal held that a week’s pay for the notice period was £791.98. As he was actually paid £744.65 per week during the notice period from 27 August to 19 November 2020, he was underpaid by £567.96 gross.

On annual leave, the tribunal preferred the claimant’s evidence that he took 12.5 days in the relevant leave year and rejected the respondent’s case that he had taken a further 6 days between 28 August and 4 September 2020. It found that his pro-rated entitlement on termination was 26.5 days, leaving 14 days accrued untaken holiday. He had been paid in lieu of only 8 days at the agreed rate of £152.08 per day, so he was entitled to a further £912.48 gross. The tribunal also noted there was no evidence that the respondent had properly notified him that he was required to take those 6 days as annual leave under regulation 15 of the Working Time Regulations 1998.

The final deduction of £953.24 from the claimant’s November 2020 wages was also held unlawful. The respondent said it represented recovery of an overpayment caused by an allegedly incorrect hourly rate of £16.67 rather than £16.16 between August 2019 and March 2020. The tribunal accepted the claimant’s evidence that he had been notified in writing in June 2019 of the £16.67 rate, found that he was entitled to rely on that as a contractual term, and held that the respondent had not proved any overpayment for the purposes of section 14(1) ERA 1996. The deduction was therefore contrary to section 13 ERA 1996.