Mrs M Cowan v Tummas Ltd — 2022

Mrs M Cowan claimed failure to pay holiday pay on termination of employment. The tribunal found that her employment ran from 29 March 2016 to 9 July 2021, that she worked 28 hours per week at £10 gross per hour, and that she had accrued but untaken holiday entitlement when her employment ended. It accepted her evidence as credible and reliable. The respondent was not present or represented at the hearing, although it had lodged an ET3 and documents.

The tribunal found that as at the termination date the claimant had accrued but untaken holiday entitlement of 197.7 hours, equal to £1,977 gross. She had been paid for 61 hours of accrued but untaken holiday entitlement, equal to £610 gross, leaving 136.7 hours unpaid, worth £1,367 gross. The respondent argued that higher weekly payments made during furlough were intended to cover holiday pay, but the claimant said she understood them to be a furlough top-up to 100% wages, consistent with a text from Mr Sammut and an email to the accountant.

Applying regulation 14 of the Working Time Regulations 1998, the tribunal held that entitlement to a payment in lieu of accrued but untaken leave arises on termination, not during the leave year. It also found that the claimant had not been required to take holidays during furlough by formal notice under regulation 15, and that there was no valid waiver of her entitlement under regulation 35(3), such as a settlement agreement. The tribunal therefore ordered payment of £1,367 gross, less deductions for tax and national insurance.