(sitting alone) Mr J Henderson v Eros Retail Ltd — 2020

Mr J Henderson was employed by Eros Retail Ltd as a Retail Assistant from 30 March to 22 November 2020. His contract stated a minimum of 4 hours per week, but in practice he usually worked around 30 hours per week and the tribunal found that hours beyond the minimum were not treated as overtime. The tribunal held that he did not have normal working hours for the purposes of the Employment Rights Act 1996, so holiday pay fell to be calculated by reference to average weekly remuneration under section 224 ERA 1996 as modified by the Working Time Regulations 1998.

The claim concerned holiday pay for one week of annual leave taken from 31 August to 6 September 2020. The respondent calculated gross holiday pay at £130.80, apparently on an assumed 15-hour week, and did not reconsider the calculation when the claimant raised concerns. Because payslips were not available for the earlier part of the employment, the tribunal adopted a broad brush approach and assessed the claimant's average gross weekly pay over the 23 complete weeks immediately before the holiday at £258.12.

On that basis, the tribunal found that the respondent had underpaid holiday pay by £127.32 gross. It therefore upheld the claim for unauthorised deduction from wages under section 13 ERA 1996 and ordered the respondent to pay £127.32 gross. The judgment does not record any separate award for interest or additional heads of loss.