Michal Trenogow v Assisted by his wife Anna Trenogow Midlothian Utilities — 2022

The final hearing on 13 January 2022 proceeded undefended because the respondent did not lodge an ET3. The claimant, Michal Trenogow, gave evidence and the tribunal found him credible and reliable. It found that he started work as a lorry driver for the respondent on 5 April 2021, usually worked three or four night shifts a week at £120 per shift, and worked under the respondent’s direction and control using the respondent’s vehicle. On that basis, and applying the Ready Mixed Concrete contract-of-service analysis, the tribunal held that he was an employee for the purposes relevant to the statutory sick pay issue.

The tribunal found that the claimant had a bicycle accident on 3 July 2021, broke his arm, required surgery and was signed off by his GP on 5 July and again on 19 August. Weekly wage slips issued from 4 July to 22 August showed £0 gross and net pay, but the respondent paid five weekly sums of £100 between 12 July and 9 August and described those payments in email as a gesture of goodwill. The tribunal held that those payments discharged the statutory sick pay due for that earlier period, but that SSP remained unpaid for the two weeks from 10 to 24 August 2021. It therefore declared that the failure to pay £192.70 was an unlawful deduction from wages under section 13 of the Employment Rights Act 1996.

On holiday pay, the tribunal found that the claimant took no paid leave during the employment. Because there was no relevant holiday provision, it treated 5 April 2021 as the start of the leave year. Applying regulation 14(3) of the Working Time Regulations 1998, it calculated accrued entitlement at 9.33 days for the period worked before termination and, using the £120 per shift rate, awarded £1,119.60 in lieu of untaken leave. The judgment therefore awarded a total of £1,312.30.