Wilczek v Cyan Beauty Studios Limited — 2019

The claimant worked as a beauty therapist for Cyan Beauty Studios Limited from 17 February 2018 to 7 September 2018. Although the written contract described her as self-employed, the tribunal found that she was a worker for national minimum wage purposes under section 54 of the NMW Act 1998. The tribunal relied on the personal service requirement, the absence of any right of substitution, the Respondent's control over work patterns and bookings, the salon branding, the provision of equipment and products, and the weekly commission-based payments. It accepted evidence that the claimant generally started 30 minutes before her first client and finished after her last client, rather than working the full salon opening hours.

On national minimum wage, the tribunal used weekly pay reference periods and added the extra time it found was worked for pre-shift attendance and cleaning duties. It calculated underpayments in a number of weeks between March and September 2018, applying the relevant NMW rates of £7.50 and £7.83, and concluded that the claimant was owed arrears of £441.02. The tribunal rejected the claimant's evidence that she worked the salon hours and preferred the evidence from the Respondent's witnesses on the hours actually worked.

On holiday pay, the tribunal held that the holiday year began on 17 February 2018 and that by the termination date of 7 September 2018 the claimant had accrued 10 days' holiday. It found that unpaid leave taken on several dates during the year did not exhaust that entitlement and, using average weekly pay of £151.83 and average daily pay of £53.59, awarded £535.90 for untaken holiday. The final judgment recorded that the complaint of unauthorised deduction from wages was well founded and ordered payment of £976.92 gross in total.