THE INDUSTRIAL TRIBUNALS

CASE REF:	445/10

CLAIMANT:			Samuel Thomas James Brashier

RESPONDENT:		Sword Security

DECISION
The claimant is entitled to monies in respect of three days holidays accrued and outstanding on the termination of his employment. The respondent shall pay the claimant £167.40.

Constitution of Tribunal:
Chairman (sitting alone):	Ms M Sheehan

Appearances:			
The claimant did not appear and was not represented.  
The respondent did appear and was represented by Tom Sheridan of Peninsula Business Services Ltd.

1.	The claimant in his claim complained that he had not received payment in lieu of holidays accrued on termination of his employment. The claimant claimed that payment in respect of nine days leave was due and owing.

2.	The response presented by the respondent denied that any monies as claimed were due and owing.

Issues

3.	The issue for the tribunal was whether the respondent failed to pay the claimant monies in respect of holidays accrued but not availed of prior to the termination of the claimant’s employment.

Sources of Evidence

4.	The tribunal considered the claim and response; documentation received from the respondent and heard the oral evidence of Fiona Noele, an employee of the respondent.

Findings of Fact

5.	The claimant who was born on 10 March 1986, commenced employment with the respondent on 15 February 2009 as a Security Officer. The claimant was paid £6.16 per hour for a 48 hour week. Holidays were paid on the basis of a 9.6 hour day per holiday accrued.

6.	The claimant worked for the respondent as usual until the 11 December 2009 when he terminated his employment with the respondent, by failing to turn up for his allocated duty.  

7.	Documentation was produced to the tribunal showing the claimant had taken leave on the following periods – five days in May 2009 (for which four were paid); June 2009 – four days paid; August 2009 – ten days for which seven were paid, week ending 9 November 2009 – three days paid and 28 to 30 November 2009 – two days paid. The claimant had a written statement of terms and conditions of employment that provided that the holiday years runs as the calendar basis and only leave accrued can be taken as paid leave, 

8.	On the information provided the respondent now acknowledged that the claimant was entitled to three days holiday pay – and indicated that same had not to date been paid to the claimant,

The Law

9.	The Working Time Regulations (Northern Ireland) 1998 as amended provide under Regulation 13A for a worker to have minimum leave in a year of 5.6 weeks from 
1 April 2008, and for the purposes of the regulations that the worker’s leave year begins, where there are no applicable provisions of a relevant agreement, if the worker’s employment began after 23 November 1998, on the date on which that employment began and each subsequent anniversary of that date.

10.	Under Regulation 14(2) of the 1998 Regulations where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3) therein which sets out a formula to be used in the absence of provision in a relevant agreement. 

11.	Under the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994 an employee may bring a claim for damages for breach of his contract of employment or for a sum due under that contract or any other contract connected with his employment before an Industrial Tribunal if the claim arises out of or is outstanding on termination of his employment.

Applying the Law to Facts Found

On consideration of all the evidence before it the tribunal is satisfied of the following:

 	Holidays

The respondent has failed to make to the claimant, on termination of his employment, a payment in lieu of leave accrued under his contract of employment and the Working Time Regulations as amended. The claimant usually worked 
48 hours per week and accrued paid holiday entitlement at a rate of 0.53 per week of employment. On the contractual basis 22.78 days holiday had accrued. The respondent had paid the claimant 20 days holidays at the date of termination of his employment. As the respondent accepted it owed in excess of 2.5 days to the claimant, and the regulations provide in such circumstances that the days should be rounded upwards, the respondent shall pay the claimant 3 days’ holiday pay at £55.80 per day being £167.40. 

12.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:    19 May 2010, Belfast.	

Date decision recorded in register and issued to parties: