Case 4109840/2021 · Employment Tribunal
Miss M Misiak v La Vita North Side Limited — 2021
- Case reference
- 4109840/2021
- Decision date
- 12 October 2021
- Jurisdiction
- Scotland
- Judge
- Employment Judge P Smith
Parties
2 namedClaimant
Miss M Misiak
Respondent
Key findings
Tribunal's reasoningMiss M Misiak started work for La Vita North Side Limited on 5 October 2020 as front of house staff at the Bishopbriggs restaurant on zero-hours terms. The tribunal found that the statement of particulars provided for weekly pay, rota-based working and annual leave accrual, and that a 30 November 2020 email about furlough stated that if employees were not required to work they would be placed on furlough, asked them to phone every Saturday, and required a reply agreeing to the arrangement. The claimant replied "I agree", and the tribunal held that this created a temporary contractual variation under which her furlough pay was set by reference to her average pre-furlough weekly earnings of £164.81.
On the wages claim, the tribunal found that the claimant was not paid £164.81 on 11 occasions between 15 January and 9 April 2021. It rejected the respondent's explanations that payment depended on whether she had telephoned the restaurant, on cash flow, or on business need, and held that there was no contractual or statutory basis for withholding the sums in those circumstances. The tribunal therefore upheld the claim under s.13 Employment Rights Act 1996 and ordered £1,812.91, uplifted by 25% to £2,266.14 because the respondent had unreasonably failed to deal with the claimant's grievance in breach of the Acas Code of Practice.
On the holiday pay claim, the tribunal held that the leave year began on 5 October 2020 because there was no contractual provision adopting the calendar year. As the claimant was in her first year of employment, leave accrued monthly under reg.15A(2A) of the Working Time Regulations 1998. The tribunal found that she had worked 135 hours across seven working weeks, giving an accrued entitlement of 54.01 hours by the effective date of termination on 10 April 2021, and that she had not actually taken annual leave. Two payments labelled Holiday Pay in January and March 2021 were treated as advance payments rather than leave taken, leaving 6.01 hours unpaid. That was valued at £53.55 and, after the 25% uplift, the respondent was ordered to pay £66.93.
Claims and outcomes
2 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unlawful deduction from wages | The tribunal found 11 unauthorised deductions, each of £164.81, on 15 January, 5, 12, 19 and 26 February, 12, 19 and 26 March, and 2 and 9 April 2021. It held that the 30 November 2020 furlough email and the claimant's reply varied the contract so that £164.81 was properly payable when she was not required to work, and it applied a 25% uplift for the respondent's unreasonable failure to comply with the Acas Code. | Upheld | — | £2,266 |
| Holiday pay | The tribunal held that the claimant's leave year began on 5 October 2020, that she accrued 54.01 hours of annual leave by 10 April 2021, and that 48 hours paid in January and March 2021 were advance payments rather than leave taken. The unpaid balance was valued at £53.55 and uplifted by 25% under s.207A TULR(C)A 1992. | Upheld | — | £67 |
Remedy
Monetary award- Total award
- £2,333
- across all upheld claims
Legal tests applied
10 references- s.13 ERA 1996
- "properly payable" under s.13(3) ERA 1996
- Delaney v Staples
- New Century Cleaning Company Ltd v Church
- Helliwell v Axa Services Ltd
- Agarwal v Cardiff University
- Davies v Droylsden Academy
- reg.13(3), reg.14 and reg.15A WTR 1998
- reg.30 WTR 1998
- s.207A and sch.A2 TULR(C)A 1992
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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