Mr Emilio Giacometti v Toni's Pizzeria West End Ltd — 2021

The claimant worked for Toni's Pizzeria West End Ltd as head pizza chef from 2 July 2018 to 22 July 2019 on a salary of £28,000 per year, with normal hours of 45 per week and 28 days' annual leave. The tribunal recorded that the parties discussed pay and bonus before the employment started, including an email from the claimant proposing a 2% bonus on gross profit above 70%, but no final agreement on bonus terms was reached.

On pay, the tribunal found that the claimant regularly worked more than 45 hours per week, totalling 98.25 hours above that threshold, but that he had already been paid for those hours at the agreed hourly rate of £11.96. It therefore rejected the claim for unpaid salary or overtime. The tribunal also rejected the bonus claim because there was no agreement at all on bonus entitlement, and in any event the respondent's accounts showed gross profit of 56%, below the 70% figure the claimant relied upon.

The holiday pay claim succeeded. For the 2018 leave year the claimant was entitled to 12 days' paid holiday, took 5 days, and the tribunal found that the respondent repeatedly failed to engage with his requests and did not give him an effective opportunity to take his leave or warn him properly of the risk of losing it. Applying regulation 14 of the Working Time Regulations 1998 and referring to Kreuziger v Berlin, the tribunal held that he could carry over the 7 unused days.

For the 2019 leave year the tribunal found that the claimant accrued 16 days' holiday, took 7 days before termination, and was unpaid for the remaining 9 days. The tribunal awarded payment for 16 days in total at the gross rate of £11.96 per day, producing a gross award of £191.36, from which tax and national insurance deductions were to be made.