Mr J Fernandes v Conduit Finance Limited and 1 other — 2021

The tribunal found that the claimant began work on 4 February 2019 and that, although he appears to have been initially employed by the third respondent, his employment transferred to and continued with the second respondent from around May to July 2019. It accepted the evidence of the claimant and Ms Laura Greig, and held that the second respondent was the relevant employing entity for the claims. The case concerned three claims: underpayment of holiday pay for leave taken in 2019, unpaid accrued holiday pay on termination, and a contractual bonus claim under clause 4.4 of the written contract.

On the holiday-pay underpayment claim, the tribunal found that the claimant took 17 days holiday in 2019 and was paid basic salary only for those periods. It held that the claim should have been presented by 19 March 2020 and that the claim lodged on 18 March 2021 was out of time. The tribunal applied the statutory time-limit analysis under the Working Time Regulations 1998 and section 23 ERA route, and rejected the explanation that the delay was attributable to former solicitors. It found no basis for concluding that it had not been reasonably practicable to present the claim in time, and no reason to extend time to March 2021.

On accrued holiday pay, the tribunal found that the claimant took no holidays in 2020 and had accrued 21 days holiday when his employment ended on 1 October 2020. It held that payment should have been made in the October payroll on 28 October 2020 and that, after allowing for early conciliation, the latest presentation date was 12 March 2021. As the claim was presented on 18 March 2021 and no further explanation for the delay was offered, this claim was also held to be time-barred and dismissed. The tribunal reached the same outcome on the breach of contract claim, finding that it was outstanding on termination but was presented after the applicable deadline.

Although the bonus claim was dismissed as time-barred, the tribunal recorded that clause 4.4 entitled the claimant to a bonus calculated by reference to gross fees generated on relevant deals. It found that the Swan deal generated £225,000 in fees, that the claimant was entitled to £11,250, and that he had received £5,625 in January 2020. The tribunal held that, had the claim been in time, it would have awarded the outstanding £5,625 because the bonus was due when the fees were invoiced, not only when the client paid.